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A Lesson Learned – Important considerations for your commercial real estate due diligence checklist

Two commercial property owners find themselves responsible for decades-old environmental contamination because they failed to conduct proper environmental due diligence before their purchase and they bought short-tail, claims-made insurance policies with a claims-in-process exclusion that did not offer any protection against long-tail environmental claims. Under federal and state environmental laws, people who buy a contaminated … Continue Reading

Court Rules Electric Utility Settlement Costs Recoverable from Liability Insurer

In Louisiana Generating LLC v. Illinois Union Insurance Co., a federal district court ruled that costs incurred by an electric utility under a settlement with the EPA for measures in lieu of work to bring the utility into compliance with the Clean Air Act were recoverable from the utility’s liability insurer. The case arose after … Continue Reading

Indiana Landowners – Environmental Liability for Tenants’ Misdeeds

Landowners in Indiana who know their properties are contaminated may be liable for damages, even if they didn’t contribute directly to the pollution, according to a recent appellate decision. In JDN Properties, LLC v. VanMeter Enterprises, Inc., the Indiana Court of Appeals reversed summary judgment for the seller and remanded the case for trial on … Continue Reading

Seventh Circuit Applies Indiana Choice of Law Rules to Deny Insurance Coverage for Contamination at an Indiana Manufacturing Facility

Hoosier land owners sleep well at night knowing that they are insured against liability for environmental contamination because Indiana does not enforce the standard pollution exclusion clauses found in many insurance policies. State Automobile Mut. Ins. Co. v. Flexdar, Inc., 964 N.E.2d 845 (Ind. 2012); Am. States Ins. Co. v. Kiger, 662 N.E.2d 945 (Ind. … Continue Reading

Multi-Million Dollar Insurance Bad Faith Claim in Environmental Contamination Case Affirmed on Appeal

An environmental contamination case resulting in a $3.4 million award for emotional distress and punitive damages due to unfair claims settlement practices by the insurer was recently affirmed on appeal in Indiana Insurance Company v. Demetre, Case No. 2013-CA-338 (Ky. Ct. App. Jan. 30, 2015). In the case, the policyholder sought to insure two pieces … Continue Reading

Court Clarifies Pleadings Requirements for CERCLA Section 112(c) Subrogration Claims

The Eastern District of California recently examined the sufficiency of an insurer’s complaint for subrogation against two potentially responsible parties (“PRPs”) for cleanup costs paid by the insurer. The PRPs argued that the insurer’s complaint failed to state a claim because it did not contain an allegation stating that its insured made a “formal” claim … Continue Reading

Successor Liability Claims For Environmental Contamination

Lawsuits for personal injuries, medical monitoring, and remediation claims resulting from historic environmental contamination often involve successor liability claims, where the corporation that caused the pollution no longer exists, but there appears to be a successor corporation operating the same or a similar business. Below is a general summary of the legal rules pertaining to … Continue Reading

PRP Letter Triggers Insurer’s Duty to Defend

One of your most valuable rights under an insurance policy is having your insurance company defend you from a covered claim, no matter how frivolous. This is known as the “duty to defend.” The Alabama Supreme Court recently joined the majority of jurisdictions in holding that a potentially responsible party (PRP) letter from USEPA under … Continue Reading

Using Insurance To Pay For Environmental Cleanups: California Approves All Sums With Stacking

In a case of first impression, the California Supreme Court approved the stacking of excess insurance policies in the continuous property loss scenario typical of environmental contamination and toxic tort litigation, thus issuing a sweeping insurance coverage opinion in favor of policy holders in California v. Continental Ins. Co., 2012 WL 3206561 (Aug. 9, 2012). … Continue Reading

Taft Environmental Attorneys Frank Deveau and David Guevara Publish Book Titled “Environmental Liability and Insurance Recovery”

Taft environmental attorneys and Environmental Law Insight contributors, Frank Deveau and David Guevara, Ph.D., designed and edited a new book titled Environmental Liability and Insurance Recovery. The book was published in May 2012 by ABA Book Publishing and was sponsored by the ABA’s Tort Trial and Insurance Practice Section. Environmental law and insurance law demand … Continue Reading

Using Insurance to Pay for Environmental Response Costs, Including a Remedial Investigation

Businesses and property owners can often have their own insurance companies pay for the costs to investigate and clean up environmental contamination on their own property under old liability insurance policies, such as commercial general liability (or CGL) policies.  Many older policies either do not have pollution exclusions or have pollution exclusions that courts have … Continue Reading

Environmental Services: Costs of Defense or Indemnification?

What part of an environmental consultant’s services constitute work performed in defense of the insured rather than indemnification? I have seen this issue pop up several times recently in the context of commercial general liability (“CGL”) policies subject to Indiana and Wisconsin law.  Read my recent blog post on Commonground.com for background, examples and a … Continue Reading

Indiana’s Supreme Court Considers Liability for Environmental Contamination

On April 7, 2011, the Indiana Supreme Court issued two important orders regarding environmental law and insurance coverage.  The first denied a petition to transfer filed by Samuel and Delores Neal and Hometown Transmission, Inc. (the “Neals”) in Samuel Neal, et al v. William J. Cure, et al, 49A04-0908-CV-468.  The second granted transfer in the … Continue Reading

Insurers Uphill Fight On Coverage In Indiana

In a recent decision, the Seventh Circuit Court of Appeals provided insurance companies doing business in Indiana with guidance on how to draft pollution exclusion clauses—provisions typically included in commercial general liability (“CGL”) policies that seek to exclude coverage for claims based on environmental contamination. Indiana is known for the tough standards it imposes on … Continue Reading
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