PCS Nitrogen, Inc. v. Continental Casualty Company, 28093

Columbia Nitrogen Corporation (Old CNC) operated a Charleston fertilizer site (1966–1972); insurers issued occurrence-based primary and excess liability policies covering 1966–1985.
Old CNC sold certain assets and, in 1986, assigned its rights under those expired policies to CNC Corp. (New CNC) without insurer consent; Old CNC later dissolved and its corporate line ultimately became PCS Nitrogen via mergers.
In 2005 Ashley II sued PCS under CERCLA for site contamination; PCS sought contribution and later claimed coverage under Old CNC’s policies via the 1986 assignment.
Policies contained a consent-to-assignment clause and a no-action clause; Respondents argued assignment was invalid because no insurer consent was obtained and contended a “loss” occurs only upon judgment/settlement (a “chose in action”).
The trial court and court of appeals held the assignment unenforceable; the South Carolina Supreme Court reversed, adopting the common-law post-loss exception (insurer consent not required for assignments made after the occurrence) and remanded for further proceedings on coverage and other defenses.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Validity of assignment without insurer consent	Assignment in 1986 occurred after the occurrence/loss, so consent not required under post-loss exception	Assignment was pre-loss because insurer's obligation is a debt only upon judgment or settlement; insurers argue assignment required consent	Court adopted post-loss exception; loss = occurrence; post-occurrence assignment valid without consent
Definition of "loss" for post-loss exception	"Loss" synonymous with "occurrence" (contamination/discharge)	"Loss" not fixed until insured’s liability is fixed by judgment or settlement (a chose in action)	Loss occurs at the occurrence; right to coverage is assignable before judgment
Insurer's risk changed by assignee's litigation conduct	PCS’s claims in CERCLA did not increase insurers’ risk because risk fixed at occurrence	PCS’s third-party allegations could increase insurers’ exposure	Court held risk is fixed at occurrence; suggested post-loss conduct issues may be considered on remand
Other coverage defenses (de facto merger, pollution exclusion, occurrence)	PCS also asserted de facto merger/corporate successor theories and occurrence coverage	Respondents asserted no occurrence and pollution-exclusion bar	Court reversed on assignment issue and did not decide de facto merger or pollution-exclusion issues; remanded for further proceedings

Narruhn v. Alea London Ltd., 404 S.C. 337, 745 S.E.2d 90 (S.C. 2013) (discusses majority rule that post-loss assignments need no insurer consent)
Howard v. Allen, 254 S.C. 455, 176 S.E.2d 127 (S.C. 1970) (no-action clause context; duties to defend/indemnify not attachable debts prior to judgment)
Ocean Accident & Guarantee Corp. v. Southwestern Bell Tel. Co., 100 F.2d 441 (8th Cir. 1939) (early federal authority holding loss/ liability arise with occurrence; post-occurrence assignment enforceable)
Fluor Corp. v. Superior Court, 354 P.3d 302 (Cal. 2015) (California Supreme Court treating loss as occurrence for post-loss assignment doctrine)
Givaudan Fragrances Corp. v. Aetna Cas. & Surety Co., 151 A.3d 576 (N.J. 2017) (New Jersey Supreme Court applying the post-loss exception where policies are occurrence-based)
Travelers Cas. & Sur. Co. v. U.S. Filter Corp., 895 N.E.2d 1172 (Ind. 2008) (holding a contrary, narrower approach: losses that are speculative/unreported may not be assignable)
American Casualty Insurance Co.'s Case, 34 A. 778 (Md. 1896) (historical statement that insurer's obligation arises when accident/occurrence happens, even if amount later determined)