On April 9, 2019, Judge John Z. Lee of the District Court for the Northern District of Illinois, Eastern Division denied the City of Evanston’s motion for a preliminary injunction against two utility companies in a RCRA action that sought to compel the utility companies to investigate and remediate polycyclic aromatic hydrocarbon (PAH) contamination in the area.  After a lengthy evidentiary hearing spanning eight days, Judge Lee found that the city had failed to meet its overall burden of proving likelihood of success on the merits, in part because he believed one of the city’s main theories of contamination to be “simplistic.”  (Memorandum Opinion and Order, at *4, City of Evanston v. Northern Illinois Gas Company, No. 16 C 5692 at *19 (N.D. Ill. Apr. 9, 2019)). And on May 16, 2019, the Seventh Circuit Court of Appeals affirmed a similar decision in Varlen Corporation v. Liberty Mutual Insurance Company, No. 17-3212 (7^th Cir. May 16, 2019), excluding an expert witness and granting summary judgment to the defendant because the expert's testimony regarding the cause of contamination was found to be unreliable, having failed to meet the Daubert standard. Read More »

Share | Email| Comments|  Topics: Causation, Contamination, Duty to Defend, Expert Witness, Groundwater, Illinois, Insurance, Insurance Coverage, RCRA, Seventh Circuit, Water

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 In an unpublished non-precedential opinion filed yesterday, the United States Court of Appeals for the Ninth Circuit ruled that receipt of a 104(e) information request for a Superfund site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 »

Share | Email| Comments|  Topics: CERCLA, Decisions of Note, Defense Costs, Duty to Defend, Insurance, Insurance Coverage, Ninth Circuit

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 »

Share | Email| Comments|  Topics: CERCLA, Decisions of Note, Duty to Defend, Insurance Coverage, Statute of Limitations, Superfund, Uncategorized