Articles

  • 2/2/2017

The United States District Court for the Central District of California held that an insurer owed a duty to defend because the possibility existed that its release of a solvent fell within the “sudden and accidental” exception to the “chemical discharge” exclusion, which barred coverage for the release of irritants or contaminants into the environment.

  • 2/2/2017

In a matter involving disputes between multiple primary level insurers, a District Court in California found that an excess only provision negated the duty to defend or indemnify.

  • 2/2/2017

A United States District Court in California held that held that an excess policy which “followed form” with a primary policy incorporated the primary policy’s conditions and exclusions, but not the primary policy’s lower limits of liability.

  • 2/2/2017

The United States District Court for the Central District of California held that an insurer did not owe a duty to pay a judgment against its insured because the insured’s intentional acts caused the plaintiff’s injuries and therefore did not constitute an “occurrence.”

  • 2/2/2017

California’s Third District Court of Appeal upheld, on remand, the trial court’s remittitur of $19 million punitive damages award to $475,000, which included Brandt fees that were not previously considered in fixing the 10:1 ratio.

  • 2/2/2017

A California Court of Appeal found that the potential of ongoing damage to wood inside a chimney was sufficient to trigger coverage for a resulting fire that occurred after the liability policy had expired.
  • 2/2/2017

A District Court in California found that the professional services exclusion precluded coverage for a lawsuit alleging violation of the False Claims Act.

  • 2/2/2017

The District Court in Nevada found that an insurer did not engage in bad faith conduct when it rejected a UM policy limits demand and made a reasonable offer to settle or mediate the claim.

  • 2/2/2017

California’s Sixth District Court of Appeal held that a subcontractor’s excess insurer was not liable for a worker’s injuries arising out of a fall because, based on undisputed circumstances, no reasonable inference could be made that the insured subcontractor was at fault.

  • 2/2/2017

California’s Fourth District Court of Appeal held that although an insurer had no duty to defend or indemnify, because the construction defect at issue was not an “occurrence,” supplementary payments were part of the duty to defend and the duty to defend determination was not retroactive; therefore, the insurer was not entitled to reimbursement from the insured for that portion of the settlement attributable to attorney’s fees and costs of suit.

  • 1/31/2017

The Second Circuit Court of Appeals in Catskill Mountains Chapter of Trout Unlimited, Inc. et al. v. EPA, et al. No. 14-1823 ruled on January 18 that the Water Transfers Rule (Rule) is not subject to the National Pollutant Discharge Elimination System (NPDES) under section 402 of the Clean Water Act (CWA). The Rule, which has been in place for 40 years, allows water to be transferred between two water bodies without requiring a National Pollutant Discharge Elimination System permit. The EPA’s reasoning was that no permit was needed because the transfers do not constitute an “addition of pollutants” to navigable waters.
  • 1/31/2017

In In re W.R. Grace & Co., et al., Reorganized Debtors., No. 01-1139 (KG), 2016 WL 7471290, at *6 (Bankr. D. Del. Dec. 28, 2016), the Delaware Bankruptcy Court ruled in favor of the Debtors, holding that the injunction provision of the confirmed plan prohibited further proceedings by a claimant asserting discovery of asbestos in tree bark years after the claims bar date.
  • 1/31/2017

Vapor intrusion has become a hot ticket item with the Environmental Protection Agency (EPA) over the last few years. The EPA uses the Hazard Ranking System (HRS) to determine what contaminated sites have high risk issues. This governs how contaminated property is evaluated and ranked for possible listing on the federal National Priorities List (NPL). As part of a flurry of last minute rule adoptions, the EPA recently amended the HRS to include a vapor intrusion component for ranking contaminated sites. The EPA insists that using this new HRS will not increase the number of sites that are added to the NPL each year. While likely true it will change what types of sites and contaminants that are going to added to the NPL.
  • 1/31/2017

For decades Trichloroethylene (TCE) has been used as a degreaser in various trades and as a spot cleaner in dry cleaning operations. Since the inception of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, TCE has been a focal point of Superfund cleanup efforts as well, as its misuse and the failure to dispose of it properly has led to hundreds of claims of soil contamination, among other problems. This ban is more focused on the effect of TCE on workers and human health, as opposed to the environment, soil or groundwater.
  • 1/31/2017

The False Claims Act, 31 U.S.C. § 3729, et seq., (FCA) was enacted in 1863 in response to Congressional concern that suppliers of goods to the Union Army during the Civil War were defrauding the government. The FCA imposes liability on anyone who knowingly submits a false claim to the government or causes another to submit a false claim to the government or knowingly makes a false record or statement to get a false claim paid by the government. The FCA also has a provision known as the “reverse false claims section” which imposes liability where someone acts improperly – not to get money from the government, but to avoid having to pay money to the government. The FCA allows a private person to file suit on behalf of the government. A suit filed by an individual is known as a “qui tam” action, and the person bringing the action is referred to as a “realtor.”
  • 1/31/2017

In the 1990s, the predecessor to the San Francisco Municipal Transportation Agency (Muni) proposed to connect the southwestern part of San Francisco to the rest of the City by means of the Third Street Light Rail Project (the Project) which would link certain southwestern neighborhoods with Chinatown, Downtown and South of Market. The Project was divided into two phases: the Initial Operating Segment and the New Central Subway. The Final Environmental Impact Report (FEIR) for the Project discussed both the Initial Operating Segment and the New Central Subway, but at different levels of detail. The FEIR stated that the two phases were related but distinct, and “subject to separate advancement decisions on separate schedules.”
  • 1/31/2017

This case—from the Southern District of New York—is the latest in a long insurance coverage battle between Olin Corporation and its carriers (Olin Corporation v. Insurance Company of North America, ____ F. Supp.3d ____ (2016 WL 6882858)(Nov. 21, 2016, S.D.N.Y. 2016).) In this particular phase of the case, two sites—one in Connecticut and one in California—were at issue. With respect to the Connecticut site, Olin sought reimbursement of approximately $1.7 million in defense fees incurred to defend against litigation involving allegations of environmental contamination at a city disposal site from a carrier that provided insurance after the contaminating events occurred.
  • 1/31/2017

On January 11, 2017, the Environmental Protection Agency (EPA) issued a notice of its intent to ban the use of trichloroethylene (TCE), (also known as trichloroethene, trichlor, trike, tricky and tri) in commercial vapor degreasing, consumer aerosol degreasing, and as a spot cleaner in dry cleaning. It would also prohibit the manufacture and import of TCE in vapor degreasing, require manufacturers, processors, and distributors, except for retailers of TCE for any use, to provide downstream notification of these prohibitions throughout the supply chain, and require limited recordkeeping. This action was taken pursuant to the newly upgraded Toxic Substance Control Act (TSCA) Section 6(a).
  • 1/31/2017

In a January 4, 2017, opinion the United States Court of Appeals for the Fourth Circuit upheld the United States District Court for the Southern District of West Virginia’s decision that narrative language in Fola Coal’s National Pollutant Discharge Elimination System (NPDES) permit applied to its mining discharges the same as did the permit’s numerical standards. See Ohio Valley Environmental Coalition v. Fola Coal Company LLC (4th Cir. 2017) 2017 WL 35726. Because those discharges, while not exceeding any numerical restriction, degraded the general quality of the water way, the district court found that Fola Coal had violated its NPDES permit. It was thus enjoined from further degradation and required to work on improving the general quality of the stream.
  • 1/31/2017

In a January 3, 2017, opinion the United States Court of Appeals for the Tenth Circuit reversed the United States District Court for the District of Utah’s grant of summary judgment in favor of Noranda Mining Inc., holding that Asarco LLC was not precluded from asserting its Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Section 113(f) contribution claim against Noranda Mining. See Asarco LLC v. Noranda Mining Inc. (10th Cir. 2017) 2017 WL 24609. The district court found that Asarco was estopped by certain statements it had made to a bankruptcy court from bringing its claim, and further that Asarco could not as a matter of law prove that it had paid more than its fair share of cleanup costs in settling with the government.
  • 1/20/2017

On January 18, 2017, FDA released a Draft Guidance entitled, “Medical Product Communications That Are Consistent With the FDA-Required Labeling – Questions and Answers.” The Draft Guidance provides information for firms about how FDA evaluates their communications regarding medical products, including promotional materials, that present information that is not contained in the FDA-required labeling for the product but that may be consistent with the FDA-required labeling for the product.
  • 1/13/2017

The prolonged rainfall last August in the southern United States dumped three times as much rain on Louisiana as Hurricane Katrina did, resulting in catastrophic flooding that the American Red Cross called the worst U.S. natural disaster since Hurricane Sandy. In 1900, the chances of a storm like that occurring were once every 50 years, but scientists at the National Oceanic and Atmospheric Administration now expect extreme rainfall events to occur once every 30 years. Thanks to global warming, our recovery time has been halved.

This article was originally published in the American Bar Association's Section of Environment, Energy, and Resources Newsletter.

  • 12/21/2016

In 1990, the City and County of San Francisco adopted the Mission Bay plan for commercial and residential development in the Mission Bay area. A final environmental impact report was certified in connection with approval of the Mission Bay plan (1990 FEIR). In 1997, a new development plan was proposed consisting of the Mission Bay North and Mission Bay South plans. Both plans were approved in 1998 after certification of a combined Mission Bay final subsequent environmental impact report (1998 FSEIR).
  • 12/21/2016

According to a pair of recent rulings by the California Supreme Court, both employers and premises owners can be held liable for exposing members of a worker's household to asbestos. The Court issued its unanimous ruling last week, deciding that companies have a responsibility to prevent such exposure when they can reasonably foresee that their employees will carry asbestos on their bodies or clothing to their households where others can be exposed.
  • 12/21/2016

To state the obvious—fracking is controversial. Many allegations concerning its impact on drinking water supplies have been made and through it all the Environmental Protection Agency (EPA) did not issue any thorough analysis upon which it would use to anchor its opinion.
  • 12/21/2016

The case of People of the State of California v. Brandon Rinehart, presents a fascinating look at the world of gold mining, and the historical perspective it affords of our great state and nation. In short, it asks the question—can the state prevent a person with a legitimate “claim” for mining gold on Federal land within a state from the one type of mining that would viably access the gold at issue?
  • 12/21/2016

In National Resources Defense Council v. County of Los Angeles, 840 F.3d 1098 (9th Cir. 2016), the Ninth Circuit considered whether compliance with a new, relaxed National Pollutant Discharge Elimination System (NPDES) permit under the Clean Water Act moots a request for an injunction against the permit holder based on violations of a prior, more restrictive NPDES permit. There, the plaintiffs sued various governmental entities alleging that they were discharging polluted stormwater in violation of the terms of their NPDES permit.
  • 12/21/2016

Allocation for long-tail environmental claims where continuous harm occurred over periods of time when liability insurance was not available in the marketplace has a varied and complex history across the United States. Some states allow for allocation for those time periods to insurers that were on the risk at other times.
  • 12/21/2016

The National Marine Fisheries Service (NMFS) used climate projections to determine that the loss of sea ice over shallow waters in the Artic would leave the Pacific bearded seal subspecies (Erignathus barbatus nauticus) endangered by the year 2095. In Alaska Oil and Gas Association v. Pritzker (October 24, 2016), the Ninth Circuit Court of Appeals upheld NMFS’s 2012 decision, reversing an Alaskan District Court decision that deemed NMFS’s use of climate projections to 2095 too “speculative.”
  • 12/21/2016

Clement Clarke Moore wrote the famous “A Visit from St Nicholas”, now just called the Christmas Poem. He penned it in 1822 for his own six children. Every year in December I take vast liberties with this classic poem and submit it to you with an environmental twist. I hope that Mr. Moore doesn’t come back and haunt me for what I’ve done.