THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

PCS Nitrogen, Inc., Petitioner, 

v. 

Continental Casualty Company, Admiral Insurance 

Company, United States Fire Insurance Company, ACE 

Property & Casualty Insurance Company, Certain 

Underwriters at Lloyd's London, the Aviva Companies, 

the Winterthur Companies, Certain London Market 

Insurance Companies, Providence Washington Insurance 

Company (as Successor in Interest by way of Merger to 

Seaton Insurance Company, f/k/a Unigard Security 

Insurance, f/k/a Unigard Mutual Insurance Company), 

Berkshire Hathaway Specialty Insurance Company (f/k/a 

Stonewall Insurance Company), Lexington Insurance 

Company, Starr Indemnity & Liability Company (f/k/a 

Republic Insurance Company), First State Insurance 

Company, and Century Indemnity Company (f/k/a 

California Union Insurance Company and Insurance 

Company of North America), Defendants, 

Of which Continental Casualty Company, Admiral 

Insurance Company, United States Fire Insurance 

Company, Certain Underwriters at Lloyd's London, the 

Aviva Companies, the Winterthur Companies, Certain 

London Market Insurance Companies, Providence 

Washington Insurance Company (as Successor in Interest 

by way of Merger to Seaton Insurance Company, f/k/a 

Unigard Security Insurance, f/k/a Unigard Mutual 

Insurance Company), Berkshire Hathaway Specialty 

Insurance Company (f/k/a Stonewall Insurance 

Company), Lexington Insurance Company, Starr 

Indemnity & Liability Company (f/k/a Republic 

Insurance Company), and First State Insurance Company 

are the Respondents. 
 

 

 

Appellate Case No. 2020-000445 

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS 

Appeal from Charleston County 

G. Thomas Cooper Jr., Circuit Court Judge 

Opinion No. 28093 

Heard June 16, 2021 – Filed April 13, 2022 

REVERSED AND REMANDED 

William Howell Morrison, of Haynsworth Sinkler Boyd, 

PA, of Charleston; Sarah P. Spruill, of Haynsworth Sinkler 

Boyd, PA, of Greenville; and Michael H. Ginsberg and 

Matthew R. Divelbiss, of Pittsburgh, PA, for Petitioner. 

Morgan S. Templeton, of Wall Templeton & Haldrup, PA, 

of Charleston, and Patrick F. Hofer, of Washington, D.C., 

for Respondent Continental Casualty Company; J.R. 

Murphy, Adam J. Neil, and Wesley B. Sawyer, of Murphy 

& Grantland, PA, of Columbia, for Respondent Admiral 

Insurance Company; Christian Stegmaier and R. Scott 

Wallinger Jr., of Collins & Lacy, PC, of Columbia, and 

John S. Favate, of Springfield, NJ, for Respondent United 

States Fire Insurance Company; Edward K. Pritchard III, 

of Pritchard Law Group, LLC, of Charleston, and Richard 

McDermott and Seth M. Jaffe, of Chicago, IL, for 

Respondents Certain Underwriters at Lloyd's London, the 

Aviva Companies, the Winterthur Companies, Berkshire 

Hathaway Specialty Insurance Company (f/k/a Stonewall 

Insurance Company), and Starr Indemnity & Liability 

Company (f/k/a Republic Insurance Company); John T. 
 

 

 

 

 

 

 

 

 

 

 

 

 

Lay Jr. and Laura W. Jordan, of Gallivan, White & Boyd, 

PA, of Columbia, and Helen Franzese, of London, U.K., 

for Respondent Certain London Market Insurance 

Companies; Elizabeth J. Palmer, of Rosen Hagood, LLC, 

of Charleston, and Molly Poag and Harry Lee, of 

Washington, D.C., for Respondent Providence 

Washington Insurance Company (as Successor in Interest 

by way of Merger to Seaton Insurance Company, f/k/a 

Unigard Security Insurance, f/k/a Unigard Mutual 

Insurance Company); John C. Bonnie, of Weinberg 

Wheeler Hudgins Gunn & Dial, LLC, of Atlanta, GA, for 

Respondent Lexington Insurance Company; R. Michael 

Ethridge and Suzanne E. Chapman, of Ethridge Law 

Group, LLC, of Mt. Pleasant, and Wayne Karbal and Paul 

Parker, of Chicago, IL, for Respondent First State 

Insurance Company. 

Matthew G. Gerrald, of Barnes Alford Stork & Johnson, 

LLP, of Columbia, and Laura A. Foggan, of Washington, 

D.C., for Amicus Curiae Complex Insurance Claims 

Litigation Association. 

JUSTICE JAMES: In this opinion, we review the application of the "post-loss 

exception"—a common law rule providing that insurer consent is not required for an 

assignment of insurance benefits made after a "loss" has occurred. PCS Nitrogen 

seeks insurance coverage for liability arising from contamination of a fertilizer 

manufacturing site in Charleston, claiming its right to coverage stems from an 

assignment of insurance benefits executed by Columbia Nitrogen Corporation in 

1986. Respondents—the insurance carriers who issued the policies in question— 

claim they owe no coverage because Columbia Nitrogen Corporation executed the 

assignment without their consent. The circuit court granted summary judgment to 

Respondents, and the court of appeals affirmed. PCS Nitrogen, Inc. v. Continental 

Casualty Co., 429 S.C. 30, 837 S.E.2d 662 (Ct. App. 2019). We granted PCS's 

petition for a writ of certiorari. We reverse the court of appeals and remand for 

further proceedings. 
 

 

 

 

 

 

 

 

 

 

 

 

 

I. Background 

A. Corporate History and Insurance Coverage 

In 1966, Columbia Nitrogen Corporation (Old CNC) began operating a 

fertilizer manufacturing site in Charleston (the Charleston Site). Respondents issued 

primary and excess liability insurance policies to Old CNC with policy periods 

ranging from 1966 to 1985. The policies provide, "The company will pay on behalf 

of the insured all sums which the insured shall become legally obligated to pay as 

damages because of . . . property damage . . . to which this insurance applies, caused 

by an occurrence . . . ." The policies define "occurrence" as "an accident, including 

continuous or repeated exposure to conditions, which results in bodily injury or 

property damage neither expected nor intended from the standpoint of the insured." 

The policies contain two provisions pertinent to this appeal—a "consent-toassignment" provision (sometimes referred to as an "anti-assignment" provision or 

a "no assignment" provision) and a "no action" provision. The consent-toassignment provision states: "Assignment of interest under this policy shall not bind 

the company until its consent is endorsed hereon." The no action provision states: 

No action shall lie against the company, unless, as condition precedent 

thereto, there shall have been full compliance with all of the terms of 

this policy, nor until the amount of the insured's obligation to pay shall 

have been finally determined by judgment against the insured after 

actual trial or by written agreement of the insured, the claimant and the 

company. 

Old CNC ceased all fertilizer production at the Charleston Site in 1972 and 

sold the Charleston Site to a third party in 1985. In 1986, Old CNC sold assets 

related to its fertilizer production business in Augusta, Georgia, to CNC Corp. (New 

CNC). In that transaction, New CNC assumed some of Old CNC's liabilities, 

including those related to Old CNC's fertilizer production business. 

The 1986 transaction also included the assignment at the root of this appeal. 

In that assignment, Old CNC transferred to New CNC its rights under expired 

policies spanning from 1966 to 1985. Old CNC did not obtain Respondents' consent 

to the assignment. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Old CNC dissolved after closing the transaction with New CNC. In 1989, 

New CNC merged with Fertilizer Industries, Inc., which changed its name to 

Arcadian Corporation. In 1997, Arcadian Corporation merged with PCS Nitrogen. 

B. Federal Litigation 

In 2005, Ashley II of Charleston, LLC, then-owner of the Charleston Site, 

filed a declaratory judgment action against PCS in federal court, alleging PCS was 

liable under CERCLA1 for environmental remediation at the Charleston Site. 

Ashley II alleged Old CNC contaminated the Charleston Site and that PCS was liable 

for remediation because its predecessor, New CNC, acquired Old CNC's liabilities 

in the 1986 transaction. PCS argued it was not the corporate successor to Old CNC. 

PCS also filed a contribution counterclaim against Ashley II and third-party claims 

against several other entities with ties to the Charleston Site. Notably, PCS sought 

contribution from Old CNC's parent corporations, Koninklijke DSM N.V. and DSM 

Chemicals North America (collectively, the DSM Parties), arguing the DSM Parties 

were responsible for contamination caused by their "alter ego," Old CNC. PCS 

alleged Old CNC's "activities at the Charleston Site substantially contributed to the 

contamination of the Charleston Site property . . . ." 

The district court found PCS liable under CERCLA and ruled there was no 

basis for imputing Old CNC's acts to the DSM Parties. Ashley II of Charleston, LLC, 

v. PCS Nitrogen, Inc., 791 F. Supp. 2d 431, 440 (D.S.C. 2011). PCS appealed, and 

the Fourth Circuit affirmed. PCS Nitrogen, Inc. v. Ashley II of Charleston, LLC, 714 

F.3d 161 (4th Cir. 2013). 

C. Current Litigation 

Citing the assignment executed by Old CNC in 1986, PCS seeks a declaration 

that Respondents are obligated to provide coverage for its defense costs and 

environmental liabilities stemming from the CERCLA litigation. PCS contends 

Respondents' consent to the assignment was not required because the assignment 

took place after the loss occurred. PCS also argues it is the corporate successor to 

Old CNC via de facto merger and therefore acquired all the rights under Old CNC's 

policies. Respondents argue PCS is not entitled to benefits under either theory and 

also claim coverage is barred under the "pollution exclusion" in the policies. 

1 Comprehensive Environmental Response, Compensation, and Liability Act, 42 

U.S.C. §§ 9601-9675. 
 

 

 

 

 

 

 

 

 

 

 

The circuit court granted summary judgment to Respondents, ruling the 

assignment is unenforceable as a matter of law because Old CNC did not secure 

Respondents' consent. The circuit court ruled the assignment is not a post-loss 

assignment because, at the time of the assignment, no judgment had been entered 

against Old CNC; the circuit court concluded "the loss in the third-party liability 

insurance context must be the event that fixes the insured contingency . . . a judgment 

against the insured." The circuit court also found Old CNC did not execute "an 

assignment of a chose in action for money payment, but an assignment of a 

contractual relationship—an attempt at a novation" that required insurer consent. 

The circuit court also rejected PCS's argument that it is entitled to coverage 

as Old CNC's corporate successor under a de facto merger theory. Finally, the circuit 

court determined Respondents' motion for summary judgment with respect to the 

pollution exclusion was moot in light of its ruling that PCS is not entitled to coverage 

in the first instance. The court of appeals affirmed. PCS Nitrogen, Inc. v. 

Continental Casualty Co., 429 S.C. 30, 837 S.E.2d 662 (Ct. App. 2019). 

II. Discussion 

The question of whether the assignment is valid is a question of law. 

Accordingly, our standard of review on that issue is de novo. See Stoneledge at Lake 

Keowee Owners' Ass'n, Inc. v. Builders FirstSource-Southeast Grp., 413 S.C. 630, 

634-35, 776 S.E.2d 434, 437 (Ct. App. 2015) ("When the circuit court grants 

summary judgment on a question of law, we review the ruling de novo."). 

A. 

We must first address two arguments Respondents contend PCS makes, 

which, in fact, PCS does not make. First, Respondents contend PCS claims Old 

CNC assigned insurance policies to New CNC, not merely rights under expired 

insurance policies. This is a drumbeat sounded throughout Respondents' brief; 

however, PCS has never made the argument that Old CNC assigned the insurance 

policies. PCS correctly notes assignment of the policies would have been impossible 

because the policy periods had expired; the only remaining things to be assigned 

were policy rights or benefits with respect to occurrences that took place during the 

policy periods. 

In a related argument, Respondents contend PCS did not appeal the circuit 

court's ruling that PCS was seeking—under a novation theory—to completely step 

into the shoes of Old CNC under the policies. Respondents claim PCS's failure to 

appeal that ruling makes it the law of the case and that, under the two-issue rule, we 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

must affirm the circuit court's decision. Buckner v. Preferred Mut. Ins. Co., 255 S.C. 

159, 160-61, 177 S.E.2d 544, 544 (1970) (holding an appellant's failure to challenge 

a second ground of the trial court's decision required affirmance). We disagree. A 

"novation" involves the substitution of parties to the policy, not merely the 

assignment of policy rights. PCS has repeatedly argued it does not seek to succeed 

to the policies, but rather to Old CNC's policy rights. The trial court's ruling on the 

novation issue is part and parcel of the issue PCS has advanced throughout the 

appellate process—whether Old CNC validly assigned its policy rights without 

insurer consent. We reject Respondents' preservation argument. 

Second, Respondents claim that because Old CNC obtained insurer consent 

to assign a liability policy that was active at the time of the assignment, Old CNC 

knew it was also required to obtain Respondents' consent to assign the expired 

policies at issue in this case. Respondents then claim PCS "urges the Court to adopt 

a theory of assignment 'by operation of law,' which no state has ever adopted." 

Respondents represent in their brief that PCS cites Northern Insurance Co. v. Allied 

Mutual Insurance Co., 955 F.2d 1353 (9th Cir. 1992)—right down to a pincite at 

page 1357 of the opinion—for this proposition. However, PCS does not ask this 

Court to adopt the theory of assignment by operation of law and does not refer to 

page 1357 of the Northern Insurance opinion at all. PCS cites Northern Insurance 

only for the general propositions that the purpose of a consent-to-assignment 

provision is to protect insurers against heightened risk and that the prospect of 

heightened risk vanishes after the loss takes place. Since PCS does not argue the 

policies were assigned by operation of law, we will not address the merits of 

Respondents' counterargument. We now address issues relevant to this appeal. 

B. 

The consent-to-assignment provision of the policies issued by Respondents 

provides, "Assignment of interest under this policy shall not bind the company until 

its consent is endorsed hereon." However, as we noted in dictum in Narruhn v. Alea 

London Ltd., the majority rule is that such a provision does not bar an assignment 

made after a loss: "it is generally held that an assignment after a loss has already 

occurred does not require an insurer's consent." 404 S.C. 337, 344, 745 S.E.2d 90, 

94 (2013). 

Courts have recognized the post-loss exception because "[t]he purpose of a no 

assignment clause is to protect the insurer from increased liability, and after events 

giving rise to the insurer's liability have occurred, the insurer's risk cannot be 

increased by a change in the insured's identity." Id. Additionally, the post-loss 

exception recognizes that a consent-to-assignment clause cannot bar an insured from 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

transferring the right to coverage that exists after a loss takes place. See id. at 344-

45, 745 S.E.2d at 94 ("[A] clause restricting assignment [in an insurance policy] does 

not in any way limit the policyholder's power to make an assignment of the rights 

under the policy . . . ." (second alteration in original) (internal quotation marks 

omitted)). 

Respondents cite decisions from Hawaii and Oregon holding that no 

assignments, even those made after a loss, are valid without insurer consent. Del 

Monte Fresh Produce (Hawaii), Inc. v. Fireman's Fund Ins. Co., 183 P.3d 734, 747 

(Haw. 2007); Holloway v. Republic Indem. Co. of Am., 147 P.3d 329, 335 (Or. 2006). 

We decline to follow Hawaii and Oregon. We now adopt the post-loss exception 

and hold insurer consent is not required for an assignment of liability insurance 

coverage rights made after a loss. 

C. 

1. The parties' arguments as to when the loss occurred 

To answer the question of whether the 1986 assignment was executed pre-loss 

or post-loss, we must determine when the loss occurred. The policies do not define 

"loss." The policies define "occurrence" as "an accident, including continuous or 

repeated exposure to conditions, which results in bodily injury or property damage 

neither expected nor intended from the standpoint of the insured." PCS argues the 

terms "loss" and "occurrence" are synonymous. PCS therefore contends the 

assignment is a post-loss assignment because it was executed after the occurrence— 

discharge of contaminants with resulting property damage. 

For reasons not pertinent to this appeal, Respondents do not concede the 

discharge of contaminants with resulting property damage was an "occurrence" as 

defined in the policies—that is an issue left for resolution on remand. Respondents 

argue that even if the discharge was an "occurrence," a "loss" would not occur until 

(1) an underlying suit results in a judgment against Old CNC for covered damages, 

or (2) a settlement is reached with the injured party with Respondents' consent. 

Specifically, Respondents contend "[t]he so-called 'post-loss' exception is really a 

'chose in action' exception" and argue an assignment of insurance rights made 

without insurer consent is valid only when the insured possesses a "chose in action" 

under the policy. Respondents define "chose in action" as a "vested right to receive 

money" or a "debt" and contend their obligations under the policies would not 

mature into debts owing to the insured until judgment against Old CNC or 

settlement. Respondents claim the "no action" provision in the policies supports 

their position that Old CNC had no chose in action in 1986. The policies' no action 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

provision states, in relevant part, "No action shall lie against the [insurer] . . . until 

the amount of the insured's obligation to pay shall have been finally determined by 

judgment against the insured after actual trial or by written agreement of the insured, 

the claimant and the company." 

Respondents claim our decision in Howard v. Allen, 254 S.C. 455, 176 S.E.2d 

127 (1970), requires us to hold a loss does not take place until judgment or settlement 

because only then would the insurer's obligation to pay the insured become fixed. 

We flatly disagree, as the pertinent issues in Howard bear no resemblance to the 

issues now before us. Howard was injured in South Carolina by an airplane propeller 

and sought to sue the plane's owner, a resident of Ohio. Howard could not serve the 

defendant in South Carolina, so she sought to issue a summons, complaint, and 

warrant of attachment directing the Spartanburg County Sheriff to attach and seize 

the liability limits and duty to defend contained in a policy of liability insurance 

issued to the defendant by a carrier that did business in South Carolina. Howard 

claimed service of these documents upon the defendant's insurer gave South 

Carolina courts personal jurisdiction over the defendant because the insurer's duty 

to defend and the applicable liability limits were "debts" owed by the insurer to the 

defendant. The trial court quashed the warrant, and Howard presented the following 

question to this Court on appeal: "Does the duty to defend and the limit of liability 

contained in a policy of liability insurance constitute a 'debt' owed the policyholder 

which is subject to attachment, thereby conferring jurisdiction [over the defendant] 

upon the Courts of this State?" Id. at 458, 176 S.E.2d at 128. 

We held in Howard that neither the duty to indemnify nor the duty to defend 

was a debt subject to attachment. We noted the defendant's insurance policy likely 

contained a no action clause stipulating that no action could be brought against the 

insurer until the liability of the insured was determined by final judgment or 

settlement. We explained that in light of the no action clause, "[i]t follows that 

insofar as the [duty to indemnify is] concerned, the insurer owes the insured nothing 

until the liability of the insured and the amount thereof has been determined." Id. at 

460, 176 S.E.2d at 129. With respect to the insurer's duty to defend, we stated, 

"[t]here is no obligation to defend until an action is brought . . . ." Id. at 461, 176 

S.E.2d at 129. We held that because the insurer had not failed to indemnify or defend 

the defendant at the time of the attachment, the insurer was not indebted to him: "At 

the time of the levy in the instant case the insurer had not failed to perform any 

obligation to the insured and was, therefore, we think, not indebted to him in any 

amount." Id. at 462, 176 S.E.2d at 130. Because the duties to indemnify and defend 

the defendant were not debts owed by the insurer, we held Howard could not attach 

them. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Respondents insist Howard requires us to hold that Old CNC did not have a 

chose in action under the policies in 1986. They claim Howard extends to the 

proposition that a loss occurs only when the insured possesses a debt or vested right 

to recover money. Therefore, according to Respondents, the assignment was a preloss assignment. We disagree. Our holding in Howard was much more 

straightforward than Respondents make it out to be. The narrow dynamic in Howard 

was an injured third party's effort to secure personal jurisdiction over a tortfeasor in 

South Carolina by attaching the insurer's contractual obligations to the tortfeasor. 

We simply held—in that setting—those obligations were not a debt subject to 

attachment by the injured third party. The term "chose in action" appears nowhere 

in Howard, and our holding in that case does not dictate the conclusion that an 

insured cannot assign policy rights to a corporate successor after a loss has occurred. 

2. Loss takes place at occurrence 

Though the insurer is not obligated to disburse proceeds until judgment or 

settlement, courts have long recognized that the insurer's coverage obligations and 

the insured's right to coverage arise well before that point. The Court of Appeals of 

Maryland explained this principle well over a century ago: 

It is not solely because the insured has actually paid damages that the 

liability of the insurer to him is fixed, but it is because an accident or 

casualty or occurrence has happened for which he is responsible, and 

against the loss arising from which he has been indemnified, that the 

obligation of the insurer to reimburse him arises, though the precise 

amount to be paid by the insurer may depend for its ascertainment upon 

events happening after the insolvency. 

Am. Cas. Ins. Co.'s Case, 34 A. 778, 784 (Md. 1896). In 1939, the United States 

Court of Appeals for the Eighth Circuit held an assignment of insurance benefits 

made after the occurrence or underlying injury but before the insured's liability was 

fixed by judgment was enforceable as a post-loss assignment. Ocean Accident & 

Guarantee Corp. v. Sw. Bell Tel. Co., 100 F.2d 441, 445-47 (8th Cir. 1939). The 

Ocean Accident court refused to equate loss with a judgment against the insured and 

held "under a liability policy such as the one under consideration, the liability, the 

loss and the cause of action arise simultaneously with the happening of the accidental 

injury . . . ." Id. at 446. 

In the years since Ocean Accident, the overwhelming majority of jurisdictions 

have applied the post-loss exception to enforce assignments of insurance benefits 

made without insurer consent after an occurrence has taken place. See Gopher Oil 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Co. v. Am. Hardware Mut. Ins. Co., 588 N.W.2d 756, 762-64 (Minn. Ct. App. 1999) 

(recognizing "when events giving rise to an insurer's liability have already occurred, 

the insurer's risk is not increased by a change in the insured's identity" and enforcing 

assignment of insurance interests made after environmental contamination took 

place); Egger v. Gulf Ins. Co., 903 A.2d 1219, 1226 (Pa. 2006) (enforcing 

assignment made after underlying occurrence because "[t]he event that occasioned 

the liability of [the insurer], was the 'Occurrence' to which the policy applied"); 

Pilkington N. Am., Inc. v. Travelers Cas. & Sur. Co., 861 N.E.2d 121, 126-29 (Ohio 

2006) (rejecting an insurer's argument that a loss occurs upon a judgment against the 

insured because "the insurer's coverage obligation in an occurrence policy arises at 

the time of the occurrence" and "the lack of a specifically defined amount of recovery 

is not fatal to the determination that a chose exists"); In re Ambassador Ins. Co., Inc., 

965 A.2d 486, 490-92 (Vt. 2008) (holding consent-to-assignment clauses in 

insurance policies did not preclude enforcement of assignment and stating the 

"[insurer's] potential liability to insure [the insured] arose when parties were injured 

by [the insured's] products. Although the exact amount of [the insurer's] liability is 

not known because all of the suits against [the insured] have not been reduced to 

distinct monetary awards, [the insurer's] obligation to insure the risk has not been 

altered"); Viking Pump, Inc. v. Century Indem. Co., 2 A.3d 76, 103-07 (Del. Ch. 

2009) (noting consent-to-assignment clauses in policies could not bar assignment 

made after loss, observing courts "have treated the 'loss' as occurring when liability 

arose[,]" and rejecting insurer's argument that claims were too speculative to be 

assigned); Ill. Tool Works, Inc. v. Com. & Indus. Ins. Co., 962 N.E.2d 1042, 1049-

50 (Ill. App. Ct. 2011) (rejecting an insurer's argument that the "loss" occurred upon 

judgment and stating "the loss was [the insured's] contamination of the [third party's] 

property, an occurrence for which [the insured] had bought defense and 

indemnification coverage"). 

The high courts of California and New Jersey recently applied the post-loss 

exception in factual scenarios similar to the one presented in this appeal. Fluor 

Corp. v. Superior Ct., 354 P.3d 302 (Cal. 2015); Givaudan Fragrances Corp. v. 

Aetna Cas. & Surety Co., 151 A.3d 576 (N.J. 2017). Givaudan is especially 

instructive. In both decisions, the courts examined the history of the post-loss 

exception and determined that under a third-party liability insurance policy, the loss 

arises at the time of the occurrence, not at the time judgment is entered against the 

insured. Fluor Corp., 354 P.3d at 330 (holding that for purposes of the post-loss 

exception, loss "should be interpreted as referring to a loss sustained by a third party 

that is covered by the insured's policy, and for which the insured may be liable" 

(emphasis added)); Givaudan, 151 A.3d at 591 ("We begin by noting that the 

policies at issue are occurrence policies. They provide coverage based on liability 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

for an occurrence to which the policy applies. As such, the relevant event giving 

rise to coverage is the loss event, not the entry of a judgment fixing the amount of 

damage for that loss." (citation omitted)). The reasoning in these decisions is sound, 

and we agree that under a third-party liability insurance policy, the loss takes place 

at the time of occurrence.2 

During oral argument, counsel for Respondents noted that in Henkel Corp. v. 

Hartford Accident & Indemnity Co., 62 P.3d 69 (Cal. 2003), the Supreme Court of 

California held claims under an insurance policy were not assignable without insurer 

consent until the claims were reduced to a claim for a sum of money due or to 

become due under the policy. However, the court overruled Henkel twelve years 

later in Fluor. 

Only one court has adopted the approach urged by Respondents in this case 

and held a loss under a third-party liability insurance policy does not necessarily take 

place at the time of the underlying occurrence. In Travelers Casualty & Surety Co. 

v. U.S. Filter Corp., 895 N.E.2d 1172 (Ind. 2008), the Supreme Court of Indiana 

considered the claims of several companies that demanded liability coverage under 

policies issued to their predecessors by various insurers. The coverage dispute 

sprang from third-party bodily injury claims related to silica exposure from working 

near an industrial blast machine. The court noted other jurisdictions "widely 

recognize an exception to the enforcement of consent-to-assignment clauses for 

assignments made after a loss has occurred." Id. at 1178-79. However, the court 

distinguished "an instantly incurred loss, such as that resulting from windstorm or 

fire" from a loss that "occurred but went unreported, even unrealized, for years." Id. 

at 1179. The court decided that in order to qualify for assignment without insurer 

consent, "at a minimum . . . the loss must be identifiable with some precision" and 

"must be fixed, not speculative." Id. at 1180. The court concluded by holding that 

"[t]o the extent the . . . blast machine injuries had occurred but had not yet 

been reported at the time of the relevant transactions, they did not constitute an 

assignable chose in action." Id. at 1181. 

2 The Fluor decision centered upon the interpretation of a California statute tracing 

back to 1872 governing the assignment of claims "after a loss has happened." Cal. 

Ins. Code § 520 (West 2022). However, as the Givaudan court noted, "[w]hile 

the Fluor court necessarily applied the California statute in reaching its result, it also 

thoroughly reviewed the development of common law principles applicable to 

liability insurance and discussed the validity of anti-assignment clauses in light of 

those principles." 151 A.3d at 589. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

We agree with the majority of jurisdictions and hold the "loss," in the context 

of the post-loss exception, is synonymous with the "occurrence." In this case, any 

loss occurred before Old CNC executed the assignment in 1986. We therefore 

reverse the court of appeals' holding that the loss does not take place until the 

insurer's obligation to pay is fixed by a judgment against the insured. PCS Nitrogen, 

Inc., 429 S.C. at 42, 837 S.E.2d at 668. An insured's claim to coverage does not 

have to be reduced to a sum due or to become due under the policy for the claim to 

be assignable without insurer consent. After an occurrence, the insured possesses a 

contingent right to coverage, and it is a right that may be assigned without insurer 

consent. 

3. Was Respondents' risk increased by PCS's conduct during the 

CERCLA litigation? 

Respondents argue their risk was actually increased in this case because, 

during the CERCLA litigation (in which Ashley II, the current owner of the 

Charleston Site, sought environmental remediation costs from PCS), PCS sought to 

cast blame for the contamination upon Old CNC. Specifically, Respondents rely on 

a third-party complaint filed by PCS in the CERCLA litigation in which PCS alleged 

the DSM Parties, Old CNC's parent companies, should be held responsible for 

contamination caused by their "alter ego," Old CNC. In the third-party complaint, 

PCS alleged: "Discovery recently taken in this case has revealed that Old [CNC's] 

activities at the Charleston Site substantially contributed to the contamination of the 

Charleston Site property and thus rendered Old [CNC] a 'covered person' within the 

meaning of . . . CERCLA." 

PCS's allegations against the DSM Parties and its attempt to obtain 

contribution from the DSM Parties did nothing to change Respondents' risk, which 

became fixed at the time of the loss and was solely related to Old CNC's activities 

at the Charleston Site. The circuit court granted summary judgment on the sole issue 

of whether the assignment was a valid post-loss assignment. The separate issue of 

whether PCS engaged in post-loss conduct that would serve to void coverage under 

the policies is not before us but may be considered on remand.

3 

D. 

3 Respondents also maintain the discharge of contaminants was not an "occurrence" 

under the policies and that coverage is voided by a pollution exclusion. There may 

be other coverage issues of which we are not aware. We express no opinion on 

issues that may arise on remand. 
 

 

 

 

 

 

 

 

We are also persuaded by PCS's public policy argument that relieving 

Respondents of their contractual duty to provide coverage would give Respondents 

a windfall. As PCS argues, the risks at issue were factored into the original 

underwriting of the policies, and the premiums paid by Old CNC were in exchange 

for coverage against the same risks. Quoting In re Viking Pump, PCS contends it 

seeks to have Respondents "cover[] the risk [they] originally contracted to insure." 

148 A.3d at 651-52. If the assignment is voided under these circumstances, 

Respondents would receive the windfall of never having to insure occurrences they 

received premiums for covering. 

III. Conclusion 

We reverse the court of appeals and hold Old CNC executed a valid post-loss 

assignment of insurance rights in 1986. PCS cannot be denied coverage on the basis 

that Respondents did not consent to the assignment. In light of our holding on that 

point, we need not address PCS's argument concerning de facto merger. See Futch 

v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 

(1999) (providing that an appellate court need not address remaining issues when 

resolution of a prior issue is dispositive). We remand to the circuit court for further 

proceedings on PCS's claim for coverage. 

REVERSED AND REMANDED. 

BEATTY, C.J., KITTREDGE and HEARN, JJ., concur. FEW, J., concurring 

in a separate opinion. 
 

 

 

 

 

 

 

 

JUSTICE FEW: I concur in the majority opinion. I write only to express my 

dismay at Respondents' reliance on the meaningless phrase "chose in action" as a 

basis for its position. See Arredondo v. SNH SE Ashley River Tenant, LLC, 433 S.C. 

69, 88, 856 S.E.2d 550, 560 (2021) (Few, J., concurring) ("If there was a time in our 

history when the phrase ['chose in action'] conveyed a precise meaning, the phrase 

has lost that meaning as the passage of time brought new usages. What is left of 

'chose in action' is a descriptive phrase with no precise meaning, a phrase we should 

stop using because it is not only vague and meaningless but also obsolete. Today, if 

lawyers wish to write legal instruments . . . with precise meaning, they should use 

phrases that in current usage are defined precisely, and they should avoid phrases 

like 'chose in action' that mean nothing.").