If the provisions of a general liability insurance policy impose a duty to defend upon an insurer, and the insurer has undertaken the defense of an environmental claim on behalf of an insured under a reservation of rights, or if the insured has potential liability for the environmental claim in excess of the limits of the general liability insurance policy, the insurer shall provide independent counsel to defend the insured who shall represent only the insured and not the insurer.(2)(a)(A) Independent counsel retained by the insurer to defend the insured under the provisions of this section must be experienced in handling the type and complexity of the environmental claim at issue.
If independent counsel who meet the requirements specified in this paragraph are not available within the insured’s community, then independent counsel from outside the insured’s community who meet the requirements of this paragraph must be considered.(b)(A) An insurer may retain environmental consultants to assist an independent counsel described in subsection (1) of this section. Any environmental consultants retained by the insurer must be experienced in responding to the type and complexity of the environmental claim at issue.
If environmental consultants who meet the requirements specified in this paragraph are not available within the insured’s community, then environmental consultants from outside the insured’s community who meet the requirements of this paragraph must be considered.
As used in this subsection, “experienced” means an established environmental practice that includes substantial defense experience in the type and complexity of environmental claim at issue.(3)(a) The obligation of the insurer to pay fees to independent counsel and environmental consultants is based on the regular and customary rates for the type and complexity of environmental claim at issue in the community where the underlying claim arose or is being defended.
In the event of a dispute concerning the selection of independent counsel or environmental consultants, or the fees of the independent counsel or an environmental consultant, either party may request that the other party participate in nonbinding environmental claim mediation described in ORS 465.484 (Unfair environmental claims settlement practices) (2).
The provisions of this section do not relieve the insured of its duty to cooperate with the insurer under the terms of the insurance contract. [2013 c.350 §7]