•     A memorandum opinion of the Ninth Circuit Court of Appeals affirmed a district court’s allocation of CERCLA responsibility.  The allocation was reviewed only for abuse of discretion.  The district court rejected both parties’ experts and allocated based on amount of contaminants removed.  While an imperfect measure, it was reasonable given the difficulty of producing all the evidence needed for a better assessment of relative responsibilities.

•     Judge Ebel, writing for the Tenth Circuit Court of Appeals, affirmed a ruling that private parties’ RCRA action against the federal action was barred by Section 113(h).  Frustrated with the delay in government response to contamination, the plaintiffs sought injunctive relief.  However, the government had begun assessing contamination at the site, which fell within the definition of removal action and triggered Section 113(h).  The demand for court-ordered injunctive relief obviously could interfere with the government’s actions.

•     Judge Kravitch, writing for the Eleventh Circuit Court of Appeals, reversed a judgment that a pollution exclusion did not apply to claims against an environmental assessor.  Whilethe lower court held that the assessor did not cause the pollution, this was irrelevant under the broad language of the policy, which excluded all claims “arising from” pollution.  The limiting interpretation of the exclusion was not necessary for the policy to have meaning.

•     Judge McLaughlin of the federal district court for the Eastern District of Pennsylvania denied a motion to revise its judgment that offset the plaintiff’s recovery by the amount of a large settlement for the same damages.  The settlement recovery was limited to the insurer, which had expressed an intent to deny payment under a pollution exclusion.  The court found it had jurisdiction, though the decision was appealed, but denied reconsideration.  The prospect of an insurer’s denial was not so unexpected to warrant modification, nor was the decision even final.

•     Judge Bennett of the federal district court for the District of Maryland granted plaintiff’s motion for partial summary judgment on duty to defend coverage, notwithstanding a qualified pollution exclusion, because of uncertainty about the nature of the releases in question.  The underlying claim was based merely on an EPA demand letter that did not describe the nature of the releases, leaving open the possibility that they were sudden and accidental.  The plaintiff also produced extrinsic evidence of one such release.  The defendants could not submit contrary extrinsic evidence, even that made in comments to the government.

•     Judge McLaughlin of the federal district court for the Eastern District of Pennsylvania granted a defendant’s motion to dismiss claims that the government was preparing to approve a development that would harm their property.  This was not a procedural standing case, because the plaintiffs identified no procedure violated in which they had legal rights.  Standing failed because they had not alleged an injury in fact, as the defendant government had not yet taken the action at issue, and other factors made the prospective injury speculative.  The case failed ripeness standards for the same reason.

•     Judge Kennelly of the federal district court for the Northern District of Illinois granted a motion to dismiss CERCLA claims under the statute of limitations.  Claims were filed more than six years after the initiation of cleanup, so the action was untimely if the cleanup were characterized as remedial.  The court found that it was remedial, not removal, noting the terms of the underlying consent decree, which referred to it as a remedial action and that it was intended to provide a final remedy for the contamination.

•     Judge Griesbach of the federal district court for the Eastern District of Washington granted in part and denied in part a motion to dismiss claims under Section 107 and Section 113 by a plaintiff who undertook cleanup pursuant to a consent decree.  The court held that the Section 107 action was unnecessary and inappropriate in light of the Section 113 action.  While not all cleanup costs were incurred in response to government requirements, the plaintiffs could potentially recover any cleanup costs, not just those compelled, in the contribution action.  The court found that declaratory relief could be obtained in a contribution action.  The court also found that contribution protection was limited to that authorized by a consent decree and in this case limited in time.

•     Judge Whyte of the federal district court for the Northern District of California granted in part and denied in part motions for summary judgment on insurance coverage of compliance costs of a water company whose actions distributed groundwater contamination.  The court found triable questions of fact about whether the contamination occurred before the policies containing pollution exclusions.  The policies that had pollution exclusions had sudden and accidental exceptions.  The relevant act for purposes of the exceptions was not the water company’s activities but the initial releases, which were possibly sudden and accidental.  The insurer therefore had a duty to defend, but its indemnification duties presented factual issues that required trial.

•     Judge Pratter of the federal district court for the Eastern District of Pennsylvania approved the class settlement of contamination claims for medical monitoring and property damage.  The court found that all the relevant factors were satisfied, noting the complexity of the litigation and the weaknesses of the class plaintiffs’ case.  In addition, the 25% attorneys’ fees and other costs were reasonable.  Because the settlement was entered in good faith, the court also provided the settling defendant with contribution protection.

•     Judge Rodriguez of the federal district court for the District of New Jersey granted in part and denied in part the government’s motion to strike affirmative defenses in its cost recovery action.  Although there were technical defects in the pleading of most of the defenses, the court allowed amendments.  This included allegations that the defective administrative record produced an arbitrary and capricious response action, that the failure of contemporary notice meant that due process was violated, that the response action was untimely, and that the harm was divisible.  Other defenses were rejected outright, though, such as an argument that the government could not recover for the removal of materials that were not hazardous substances.

•            A per curiam opinion of the Court of Appeals of Michigan reversed a decision allowing an insured to proceed with recovery claims against an insurer.  Plaintiff failed to provide contractually required notice.  Although it promptly provided notice of original occurrences, the presence of contamination, it failed to provide defendants notice of subsequent enforcement actions, which denied them the opportunity to participate in the defense of those actions.  The claims also failed the statute of limitations.  Although the defendants never formally denied coverage, representing a breach, they had functionally denied coverage long before the complaint’s filing, a fact that the complaint itself recognized.  Coverage was also precluded because the plaintiff voluntarily remediated contamination and incurred costs without the insurer’s knowledge or approval, in contravention of the contract.

 

* * * 

Return to the top of the Highlights section.