Subscribe for updates
Recent Posts
- D.C. Circuit Issues Surprise Holding in NEPA Dispute: CEQ Regulations are Non-Binding
- New Mexico District Court Applies Pro-Rata Method to Settlement under CERCLA
- New Jersey Appellate Division Finds The New Jersey Constitution Does Not Provide A Fundamental Right To “A Stable Environment”
- Wisconsin District Court Allocates CERCLA Liability for Past and Future Response Costs
- Missouri Court Rejects "Bright-Line" Test for Determining Statute of Limitations Under CERCLA Section 107
Topics
- Council on Environmental Quality
- Loper Bright
- Agency Action
- Public Trust Doctrine
- New Jersey Civil Rights Act
- Environmental Justice
- Title VI
- Disparate Impact
- Massachusetts
- Evidence
- Internal Investigation
- Citizens Suit
- Georgia
- Federal Insecticide, Fungicide, and Rodenticide Act
- FIFRA
- 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
- Vapor Intrusion
- Solvents
- National Priorities List
- Price-Anderson Act
- Solid Waste Management Act
- Personal Jurisdiction
- Successor Liability
- Potentially Responsible Parties
- Operator Liability
- Environmental Covenants
- Federal Circuit
- National Contingency Plan
- Divisibility
- Apportionment
- Water Pollution Control Act
- Strict Liability
- Public Utilities Commission
- Historic Resources
- Utilities
- Hydraulic Fracturing
- Water Use
- Ohio
- PFAS
- Arbitration
- Alternative Dispute Resolution
- Climate Change
- Auer Deference
- Commonwealth Court
- Fees
- West Virginia
- Forest Service
- TSCA
- Asbestos
- Martime
- Gold King Mine
- New Mexico
- Utah
- Tribal Lands
- Federal Tort Claims Act
- Delaware
- Delaware Department of Natural Resources and Environmental Control
- National Forest Management Act
- FERC
- Endangered Species Act
- Chevron Deference
- United States Supreme Court
- HSCA
- Alter Ego
- Corporate Veil
- Allocation
- Eleventh Amendment
- Delaware River Basin Commission
- Mining
- Intervention
- New Hampshire
- PCBs
- Property Damage
- Building Materials
- First Circuit
- Groundwater
- Natural Resource Damages
- Brownfields
- Brownfield
- Innocent Party
- Environmental Rights Amendment
- PHMSA
- Pipeline Hazardous Materials Safety Administration
- FOIA
- Effluents
- Sediment Sites
- EHB
- Pipelines
- Texas
- Missouri
- Coal Ash
- Injunction
- Spoliation
- TMDL
- Stormwater
- Safe Drinking Water Act
- Colorado
- Michigan
- Drinking Water
- North Carolina
- Bankruptcy
- Clean Streams Law
- Hearing Board
- Civil Penalties
- Arranger Liability
- Retroactive
- Sovereign Immunity
- Damages
- Stigma
- Property Value
- Tax assessment
- Fair Market Value
- Storage Tank
- Electric
- Fifth Circuit
- Indemnification
- Energy
- Ninth Circuit
- Arizona
- OPRA
- Attorney-Client
- Iowa
- Fourth Circuit
- Discovery Rule
- Eighth Circuit
- Administrative Appeals
- Taxes
- Preemption
- CAFA
- Freshwater Wetlands Protect Act
- Inspection
- Residential
- New York
- Federal Energy Regulatory Commission
- Natural Gas Act
- Pennsylvania Department of Environmental Protection
- Mercury
- D.C. Circuit
- HAPs
- Hazardous Air Pollutants
- Condemnation
- Takings
- Natural Gas
- Storage
- Fifth Amendment
- Flooding
- Takings Clause
- Spill Act
- Causation
- NEPA
- Mineral Leasing Act
- Interior
- Tenth Circuit
- California
- Zoning
- Act 13
- Duty to Defend
- Insurance Coverage
- Eminent Domain
- Landfill
- Private Right of Action
- Sixth Circuit
- Illinois
- Water
- Subject Matter Jurisdiction
- Citizen Suit
- Diligent Prosecution
- Arkansas
- Pennsylvania
- Press
- Uncategorized
- Maryland
- Eleventh Circuit
- Equal-Footing Doctrine
- Montana
- Navigability
- Riverbed
- Indiana
- Seventh Circuit
- Breach of Contract
- Public Lands
- Bona Fide Prospective Purchaser
- Green House Counsel
- Delay Notice
- EPA
- Boiler MACT
- Rulemaking
- CISWI
- Enforcement
- Equity
- Laches
- Consent Decree
- Contribution
- Declaratory Relief
- Second Circuit
- NPDES
- Procedure
- Standing
- Dimock
- Medical Monitoring
- Legislation
- Case Update
- Louisiana
- Certification
- Contamination
- Dukes
- CLE
- Expert Witness
- Privilege
- Work Product
- Decisions of Note
- Cases to Watch
- Discovery
- CERCLA
- Cost Recovery
- Defense Costs
- Insurance
- Real Estate
- Consultant Liability
- Negligence
- Remediation
- Response Action Contractors
- Army Corps
- Donovan
- Rapanos
- Nuisance
- Odors
- Class Actions
- Trespass
- Farming
- Hog Barn
- Kentucky
- ISRA
- New Jersey
- Informal Agency Action
- Administrative Hearing
- Combustion
- Emissions
- Railroad
- RCRA
- Waste
- Air
- Cancer
- Speaking Engagements
- Federal Procedure
- Removal
- Third Circuit
- Toxic Torts
- Title V
- Clean Air Act
- Permits
- Statute of Limitations
- Cleanup
- Superfund
- Supreme Court
- Multi-District Litigation
- Statute of Repose
- Tolling
- Camp Lejeune
- Deeds
- Administrative Procedures Act
- Marcellus Shale
- Clean Water Act
- Mineral Rights
- Due Process
- Enforcement Action
- Wetlands
- Drilling
- Exploration
- Leases
- Oil and Gas
- Royalties
Blog editor
Blog Contributors
Love Canal – the infamous neighborhood in Niagara Falls, New York where large quantities of chemical waste was dumped, and which became the catalyst for enactment of the federal Superfund program – is still generating legal opinions, nearly 40 years after President Jimmy Carter declared a federal health emergency and Love Canal became the first Superfund site.
The case, The Cincinnati Insurance Co. v. Roy’s Plumbing, Inc., Dkt. No. 16-2511-cv (2d Cir., May 31, 2017), is an insurance coverage dispute for claims in an underlying personal injury and property damage litigation filed by three families residing near Love Canal against a local plumbing company, that the homeowners claim negligently performed various sewer line repairs that disturbed sediments from the Love Canal Superfund containment area, resulting in discharges of contamination onto their properties. The homeowners also assert that the plumbing company’s alleged negligent actions included pressure washing local roadways and storm drains, which further dispersed the contamination. The homeowners sought damages, including punitive damages, an injunction for remediation of the contamination, and medical monitoring.
The plumbing company filed a claim against its insurer for defense and indemnity of the homeowner lawsuit, and the insurer disclaimed coverage under a “pollution exclusion” in the plumbing company’s policy. The pollution exclusion – a standard provision in general commercial liability insurance policies – excluded coverage for “bodily injury or property damages which would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release, escape, or emission of pollutants at any time.” After the plumbing company refused to withdraw its claims for coverage under the insurance policy, the insurance company filed a declaratory judgment action to affirm that it was not obligated to provide coverage for the homeowner lawsuit. The plumbing company counterclaimed, arguing the policy did provide coverage, which placed the pollution exclusion issue squarely before the court.
The United States District Court for the Western District of New York agreed with the insurance company and granted summary judgment – confirming that the insurer did not have a duty to defend or indemnify the plumbing company in the underlying homeowner lawsuit.
In a recent summary order, the United States District Court for the Second Circuit agreed with the District Court, and affirmed the summary judgment ruling. The Second Circuit noted that an insurer’s duty to defend is “exceedingly broad” under New York law, and an insurer bears a “heavy burden of demonstrating that the allegations of the complaint cast the pleadings wholly within the exclusion,” in order to deny coverage. But, here, the homeowner lawsuit sought personal injury and property damages caused by the release of hazardous substances, which fell directly within the policy’s pollution exclusion. Therefore, the insurance company had no duty to defend or indemnify the plumbing company in the lawsuit.
While this case does not necessarily break new ground, it reaffirms that the pollution exclusion in commercial insurance policies is alive and well, and will be upheld when the facts fall within the language of the exclusion.