The most noteworthy decisions this month are the following:
• In Premier Associates, Inc. v. EXL Polymers, Inc., No. 12-10325 (11th Cir. February 5, 2013), Judge Albritton, writing for the Eleventh Circuit Court of Appeals, affirmed a finding that a company that sent materials for recycling was not liable for damages from its storage. The individual landowners could recover on the policy, because their corporate ownership also made them liable as operators. Uncertainty about the possibility of a sudden and accidental release and potential regulatory estoppel precluded judgment on the pollution exclusion.
• In Sacramento Municipal Utility District v. United States, No. 09-587C (Ct. Cl. January 31, 2013), Judge Braden of the United States Court of Federal Claims found that a company was entitled to recover some mitigation costs due to the government’s partial breach of contract but with an offset for costs saved. The court carefully analyzed the costs expended and allowed the recovery of some but not all. The government was also entitled to some offset for cost savings incurred. The plaintiff recovered slightly under half its claimed costs.
• In AVX Corporation v. United States, No. 11-1697 (4th Cir. February 7. 2013), Judge Diaz, writing for the Fourth Circuit Court of Appeals, affirmed a finding that the government was not responsible for proximate site causation. The government’s expert testimony was properly included, though he was not expert in the particular TCE contamination. The lower court performed an exhaustive analysis and concluded that the government’s waste had not migrated to the site.
• In Hobart Corporation v. Waste Management of Ohio, Inc., No. 3:10-cv-195 (S.D. Ohio February 8, 2013), Judge Rice of the federal district court for the Southern District of Ohio granted a motion to dismiss a CERCLA Section 107 action, because the party had entered into an administrative settlement. Its agreement with the government explicitly said it was such a settlement. Consequently, the plaintiff was limited to a CERCLA contribution action, which was time-barred under the statute.
• In The Narragansett Electric Company v. American Home Assurance Company, No. 11 Civ. 8299 (PKC) (S.D.N.Y. February 1, 2013), Judge Castel of the federal district court for the Southern District of New York granted in part and denied in part a motion to dismiss claims for insurance coverage. After resolving choice of law issues, the court found that simple migration of pollution could not be sudden and accidental but the complaint did allege other specific events. Nor could migration even be a covered occurrence under the policies.
• In Carolina Power & Light Company v. Alcan Aluminum Corporation, No. 5:08-CV-460-FL (E.D.N.C. February 1, 2013), Judge Flanagan of the federal district court for the Eastern District of North Carolina granted a motion for summary judgment on CERCLA liability of a transformer seller as an arranger. The defendant sold a useful product for fair market value. There was no specific evidence indicating that it had any intent to dispose of a hazardous waste.
• In Carolina Power & Light Company v. Alcan Aluminum Corporation, No. 5:08-CV-460-FL (E.D.N.C. February 19, 2013), Judge Flanagan of the federal district court for the Eastern District of North Carolina denied motions for summary judgment on CERCLA liability. The court first found that evidence on the old practice of spills was validated under an exception to the hearsay rule on evidence. In addition, disputed facts about matter such as the substance released or NCP compliance prevented any summary judgment in the case.
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