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Showing 8 posts in Insurance Coverage.

Last week, the Commonwealth Court of Pennsylvania held in a unanimous decision that latent environmental property contamination triggered several comprehensive general liability (“CGL”) insurance policies despite the fact that the contamination was not discovered until at least a decade later. In doing so, the Court resolved a question left open by two earlier Pennsylvania Supreme Court decisions over whether latent property damage in “occurrence” policies is triggered at the time the damage occurs or when the damage first manifests itself.     Read More »

One of the finest lines that environmental attorneys walk is in protecting communications between counsel and a retained environmental consultant from disclosure in litigation.  In a recent case out of the Northern District of Indiana, Valley Forge Ins. Co. v. Hartford Iron & Metal, Inc., No. 1:14-cv-00006 (N.D. Ill. Apr. 14, 2017), the Court found that communications between counsel and consultants retained by the counsel  were not protected by the attorney-client privilege, in large part because the consultants also performed remedial work.  However, as the work was done "in anticipation of litigation" with, among others, the Indiana Department of Environmental Management (IDEM) and EPA, substantive communications were protected by the attorney work product doctrine.   Read More »

In the latest development in Olin Corporation v. Insurance Co. of North America, No. 1:84-CV-01968, (S.D.N.Y., 11/21/2016), a 30-plus year old case between plaintiff Olin Corporation (“Olin”) and its insurance provider, defendant Insurance Company of North America (“INA”), a judge of the Southern District Court of New York ultimately ordered the insurer to reimburse Olin $1.7 million for litigation costs it incurred in connection with a 2003 lawsuit concerning hazardous waste contamination at one of Olin’s properties originating in the 1950s. Read More »

As part of EPA’s investigation of a Superfund site, EPA typically issues a 104(e) information request to any person or entity that EPA believes to have information regarding release of hazardous substances at the site, including those that may be considered to be PRPs charged with the ultimate cleanup of the site.  Responding to a 104(e) request often requires the recipient to provide detailed responses regarding historical and current industrial operations, and can often set the stage for settlement negotiations with EPA and other PRPs regarding funding the investigation and remediation of the Superfund site. In an unpublished non-precedential opinion filed yesterday, the United States Court of Appeals for the Ninth Circuit ruled that receipt of a 104(e) information request for a Superfund site triggers an insurer’s duty to defend a policyholder for attorneys’ fees and related costs associated with responding to the request.   Read More »

In New Jersey, a property owner affected by a release from an underground storage tank cannot succeed on a private nuisance or trespass action absent demonstration of the tank owner’s intentional, negligent or reckless conduct.  Moreover, neither the tank owner’s insurer’s agreement to remediate the affected property nor the migration of the leaked substance onto the affected property conveys the affected property owner third party beneficiary status such that the property owner can maintain a bad faith action against the insurance provider.  In Ross v. Lowitz, No. A-101-13 (N.J. Aug. 6, 2015), the New Jersey Supreme Court recently issued a decision narrowing the avenues to recovery of property owners affected by a release from a neighboring underground storage tank by clarifying these two rules. Read More »

An issue that insurers and industry have grappled with is whether a company can obtain environmental insurance coverage for costs to address violations of the Clean Air Act, when the costs at issue are aimed at curbing future air emissions, rather than remediating emissions that have already occurred.  Last week, one federal judge in Louisiana answered that question in the affirmative in La Gen Louisiana Gen. LLC, et al. v. Illinois Union Ins. Co., Dkt. No. 3:10-cv-00516 (M.D. La., Aug. 5, 2015).  Read More »

Often, the most important concern for a landowner facing a cost recovery action is not liability, but rather insurance coverage.  And then, the question may not be “is it covered” but “how much am I covered for?”  On August 9, 2012, the California Supreme Court issued its opinon in California v. Continental Insurance Co.. No. S170560 (Ca. Aug. 9, 2012), providing some comfort to parties locked in expensive clean-up battles. Read More »

The U.S. District Court for the Western District of Pennsylvania issued a short but important decision this week concerning the applicable statute of limitations under Pennsylvania law for an insurance carrier’s allegedly improper refusal to accept the defense of its insured.  Wiseman Oil Co., Inc. v. TIG Insurance Co., Civ. Action No. 011-1011 (W.D. Pa.), is an environmental insurance case brought against an insurer for breach of contract and bad faith for failure to defend a CERCLA action.  After answering the complaint, the defendant insurer filed a motion for judgment on the pleadings, arguing that the action – filed in 2011 after the insured entered into a Consent Decree to resolve the underlying litigation – was time-barred because the insured’s claims accrued in 2004, when the insurer initially refused to provide the insured with a defense. Read More »