In Sherwin-Williams Co. v. Certain Underwriters at Lloyd’s London, No. 2023-0255 (Ohio 12/10/2024), insured paint company Sherwin-Williams was sued by California governmental entities for public nuisance arising out of Sherwin-Williams’ lead-based paint used in buildings throughout California. The suit resulted in a judgment against Sherwin-Williams ordering it to pay over $100M into an abatement fund which would be used to test buildings for the presence of lead, remediate and repair affected buildings, and educate the public on lead-based paint hazards. Sherwin-Williams then sued its general liability insurers in Ohio state court seeking indemnity. The trial court entered summary judgment for the insurers, finding that the amounts to be paid into the abatement fund did not constitute “damages.” The intermediate appellate court reversed, finding that the amounts did constitute “damages.” The Supreme Court of Ohio agreed with the trial court, reversed the intermediate appellate court’s decision, and reinstated the judgment entered by the trial court in favor of the insurers. All of the Sherwin-Williams liability policies provided generally that the insurers would indemnify Sherwin-Williams for all sums for which Sherwin-Williams became legally obligated to pay as damages because of bodily injury or property damage. Although none of the policies defined the term “damages,” the parties agreed that it meant money to be paid as compensation for loss or injury. They disagreed on application of that definition to the California abatement fund. The insurers argued that the abatement fund was to prevent future harm from lead-based paint hazards, while Sherwin-Williams argued that it was to compensate for past harm from lead-based paint hazards. After analyzing California law on public nuisance and the abatement plan established by the California trial court, the court decided that the insurers “have the better argument.” With respect to that part of the abatement plan providing funds for repairs to buildings, the court determined that there was no allegation nor indication the lead-based paint caused any physical damage to the buildings, thus there was no “property damage” as defined by the policies.