An Illinois appeals court ruled that an insurer had a duty to defend a successor of an insured where the insured made an assignment of benefits pursuant to a asset sales agreement. The assignment of benefits had been made without consent of the insured and the insurance policy had contained an anti-assignment clause.. In Illinois […]
Assignment of Benefits Does Not Violate Anti-Assignment Clause Read More »
In what may be one of the more important common law pollution cases of the past few years, the Montana Supreme Court ruled that property owners may proceed with lawsuit alleging damages from contamination that has migrated from a railyard that had operated by Burlington Northern & Santa Fe Railway Company and its predecessors from
Montana Supreme Ct Allows Lawsuit To Proceed For 25 Year Old Plume Read More »
In Queens W. Dev. Corp. v. Honeywell Int’l, 2011 U.S. Dist. LEXIS 91795 (D.N.J. 2011), the plaintiff developers commenced remedial activities at two parcels that were accepted into the New York State Department of Environmental Conservation (NYSDEC) Brownfield Cleanup Program (BCP) and Voluntary Cleanup Program (VCP). Plaintiffs filed a lawsuit against the defendants as successors
CERCLA Contribution Action Not Available for BCP/VCP Cleanup Read More »
Groundwater at many commercial properties in Long island and suburban areas of New York has been contaminated from discharges to dry wells, leaching pools and septic systems. In the 1980s, the New York State Department of Environmental Conservation (NYSDEC) frequently used consent orders issued pursuant to Title 17 of the Environmental Conservation Law which prohibits
The Third Party defense (42 U.S.C. 9607(b)(3) is probably the most important CERCLA defense. To assert the defense, a defendant must satisfy the following four elements or prongs: The release was solely caused by a third party; The defendant had no direct or indirect “contractual relationship” with the third party (“contractual relationship” prong); The defendant
Review of Recent CERCLA Third Party Defense “Due Care” Caselaw-Part 1 Read More »
A federal district court ruled that a company was not liable for improper disposal of PCB-contaminated capacitors by a former employer because the employer was not aware of nor had authorized the actions of its former employee. In essence, the court concluded that the employee had engaged in an independent venture for which his employer
Company Not Liable For Disposal By Employee Read More »
One of the underpinnings of corporate law is that a purchaser of assets is not normally liable for the liabilities of the predecessor while a stock purchaser will take on the pre-existing liabilities. Courts have fashioned four exceptions to the no liability for asset purchaser rule. The exceptions are: express or implied assumption of liability
Ct Rules Existence of Seller Not Relevant For Successor Liability Read More »
A federal district court ruled that a Maryland county government was liable to a developer for damages resulting from the migration of landfill gas from a closed landfill to a planned development community. The court held that developer was entitled to recover response costs under CERCLA and that the subsurface migration of methane gas and VOCs
County Liable to Developer for Migration of Landfill Gas Read More »
As the nation slowly lifts itself out of the effects of the Great Recession, lenders are beginning to increase the pace of foreclosures on commercial properties. The volume of foreclosures is likely to significantly increase during the next few years as the loans that were originated during the height of the credit bubble become due.
Foreclosing Banks Increasingly Using Environmental Insurance For Sales Risks Read More »
The amount parking that was necessary for a regional mall/mixed-use project was at the heart of a lawsuit involving a wetlands permits issued by the Army Corps of Engineers (Corps). In Sierra Club v. Van Antwerp, 2011 U.S. App. LEXIS 23736 (D.D.C 11/29/11), the Corps issued a permit in 2007 authorizing the filling 54 acres
Wetlands Case Centers on ROR and Amount of Parking Read More »