Subscribe for updates
Recent Posts
- District Court Certifies 23(b)(3) Class Action Alleging Injury from Misrepresentations That Pet Food Was “Healthy” Despite Presence of PFAS
- Fifth Circuit Upholds TCEQ’s Third Construction Extension for Texas LNG Project
- Sixth Circuit Holds Clean Air Act Requires Compliance with RACT even where Attainment Application is Pending
- Ninth Circuit Modifies Approach to Mandatory Injunctive Relief in Certain Cases Under Endangered Species Act
- Ninth Circuit Finds Clean Water Act Suit Seeking Only Civil Penalties Becomes Moot Once Wrongful Conduct Ceased
Topics
- State Implementation Plans
- Venue
- NJDEP
- Connecticut
- Pollutants
- Federal Land Policy and Management Act
- Agency Action
- Loper Bright
- Council on Environmental Quality
- Public Trust Doctrine
- New Jersey Civil Rights Act
- Environmental Justice
- Disparate Impact
- Title VI
- Massachusetts
- Internal Investigation
- Evidence
- Citizens Suit
- FIFRA
- Federal Insecticide, Fungicide, and Rodenticide Act
- Georgia
- Major Questions Doctrine
- Lead Paint
- Greenwashing
- Good Faith Settlement
- Federal Facilities
- Statutory Notice
- Oil Pollution Act
- Federal Jurisdiction
- Owner Liability
- Court of Federal Claims
- Ripeness
- Renewable Fuel Standard
- Fish and Wildlife Service
- Greenhouse Gas
- Refinery
- Alaska
- Florida
- Solvents
- National Priorities List
- Vapor Intrusion
- Price-Anderson Act
- Solid Waste Management Act
- Personal Jurisdiction
- Successor Liability
- Potentially Responsible Parties
- Operator Liability
- Federal Circuit
- Environmental Covenants
- National Contingency Plan
- Apportionment
- Divisibility
- Water Pollution Control Act
- Strict Liability
- Historic Resources
- Utilities
- Public Utilities Commission
- Hydraulic Fracturing
- Water Use
- Ohio
- PFAS
- Arbitration
- Alternative Dispute Resolution
- Climate Change
- Auer Deference
- Fees
- Commonwealth Court
- West Virginia
- Forest Service
- TSCA
- Asbestos
- Martime
- New Mexico
- Tribal Lands
- Gold King Mine
- Utah
- Federal Tort Claims Act
- Delaware
- Delaware Department of Natural Resources and Environmental Control
- FERC
- National Forest Management Act
- Endangered Species Act
- United States Supreme Court
- Chevron Deference
- HSCA
- Corporate Veil
- Alter Ego
- Allocation
- Eleventh Amendment
- Delaware River Basin Commission
- Mining
- Intervention
- New Hampshire
- Building Materials
- First Circuit
- Property Damage
- PCBs
- Groundwater
- Natural Resource Damages
- Brownfield
- Innocent Party
- Brownfields
- Environmental Rights Amendment
- PHMSA
- Pipeline Hazardous Materials Safety Administration
- FOIA
- Effluents
- Sediment Sites
- EHB
- Texas
- Missouri
- Pipelines
- Injunction
- Coal Ash
- Spoliation
- Stormwater
- TMDL
- Safe Drinking Water Act
- Colorado
- Drinking Water
- Michigan
- North Carolina
- Bankruptcy
- Clean Streams Law
- Civil Penalties
- Hearing Board
- Arranger Liability
- Retroactive
- Sovereign Immunity
- Stigma
- Fair Market Value
- Tax assessment
- Damages
- Property Value
- Storage Tank
- Energy
- Fifth Circuit
- Electric
- Indemnification
- Arizona
- Ninth Circuit
- Attorney-Client
- OPRA
- Iowa
- Discovery Rule
- Fourth Circuit
- Eighth Circuit
- Taxes
- Administrative Appeals
- Preemption
- CAFA
- Residential
- Inspection
- Freshwater Wetlands Protect Act
- New York
- Natural Gas Act
- Federal Energy Regulatory Commission
- Pennsylvania Department of Environmental Protection
- Hazardous Air Pollutants
- HAPs
- D.C. Circuit
- Mercury
- Takings
- Condemnation
- Natural Gas
- Storage
- Flooding
- Fifth Amendment
- Takings Clause
- Causation
- Spill Act
- NEPA
- Interior
- Mineral Leasing Act
- Tenth Circuit
- California
- Act 13
- Zoning
- Insurance Coverage
- Duty to Defend
- Landfill
- Eminent Domain
- Private Right of Action
- Sixth Circuit
- Illinois
- Water
- Citizen Suit
- Diligent Prosecution
- Subject Matter Jurisdiction
- Arkansas
- Pennsylvania
- Press
- Uncategorized
- Maryland
- Eleventh Circuit
- Montana
- Equal-Footing Doctrine
- Riverbed
- Navigability
- Seventh Circuit
- Indiana
- Breach of Contract
- Public Lands
- Green House Counsel
- Bona Fide Prospective Purchaser
- Enforcement
- EPA
- Laches
- Boiler MACT
- Delay Notice
- Rulemaking
- Equity
- CISWI
- Consent Decree
- Second Circuit
- Contribution
- Declaratory Relief
- Procedure
- Standing
- NPDES
- Medical Monitoring
- Dimock
- Case Update
- Legislation
- Certification
- Contamination
- Louisiana
- Dukes
- CLE
- Discovery
- Work Product
- Cases to Watch
- Privilege
- Decisions of Note
- Expert Witness
- CERCLA
- Insurance
- Defense Costs
- Cost Recovery
- Real Estate
- Response Action Contractors
- Consultant Liability
- Negligence
- Remediation
- Rapanos
- Army Corps
- Donovan
- Hog Barn
- Kentucky
- Trespass
- Farming
- Odors
- Nuisance
- Class Actions
- New Jersey
- ISRA
- Informal Agency Action
- Administrative Hearing
- Railroad
- Cancer
- Emissions
- Waste
- Air
- Combustion
- RCRA
- Speaking Engagements
- Third Circuit
- Toxic Torts
- Removal
- Federal Procedure
- Title V
- Clean Air Act
- Statute of Limitations
- Permits
- Cleanup
- Supreme Court
- Superfund
- Camp Lejeune
- Statute of Repose
- Multi-District Litigation
- Tolling
- Deeds
- Clean Water Act
- Wetlands
- Mineral Rights
- Administrative Procedures Act
- Enforcement Action
- Marcellus Shale
- Due Process
- Leases
- Exploration
- Royalties
- Drilling
- Oil and Gas
Blog editor
Blog Contributors
In a case of dueling summary judgment motions, a defendant insurance company came up on the short end of the stick on two principal legal issues resulting in a summary judgment finding in favor of Plaintiff, Wells Cargo, Inc.
The insurance claims arise out of a CERCLA cost recovery proceeding initiated by the U.S. Department of Agriculture Forest Service against Wells Cargo for contamination at the North Maybe Mine in Southeast Idaho. Wells Cargo conducted mining operations at the Site from 1965-1967, when Wells Cargo was insured under policies issued by Transport Insurance.
Transport denied any duty to defend Wells Cargo in the underlying proceeding and rejected Wells Cargo’s claim for reimbursement of the costs Wells Cargo incurred in connection with an ongoing Remedial Investigation and Feasibility Study of the Site.
As to the duty to defend issue, the parties agreed that Transport had a duty to defend against suits but disagreed that the term “suits” would include a CERCLA administrative proceeding such as the one that gave rise to Wells Cargo’s insurance claim. Relying on 9th Circuit and Idaho case law, the Court had little difficulty rejecting Transport’s arguments, finding that the Government allegations against Wells Cargo, “if found to be true, created potential for liability for property damage which would be covered by the Transport policies.”
The second issue of whether RI/FS costs constitute defense costs, as advanced by Wells Cargo, or indemnity claims, as advanced by Transport, the Court admitted was less clear given the absence of guiding case law on the issue. Ultimately, however, the Court accepted Wells Cargo’s position that it had participated in the RI/FS process as a means of investigating and thus defending the contamination claims and ruled that the costs were recoverable defense costs.
While the decision did not address the type of notification/communications between the parties regarding the incurrence of RI/FS costs, if any, under the reasoning of this case, a PRP should take reasonable steps to document and notify its insurer of the purpose of its participation in RI/FS type activities to better ensure their recovery as defense costs – not indemnity claims.
