Defining “Pollutant”: What You Don't Know Can Hurt You

A fundamental question reported in hundreds of court decisions and evaluated every day by claims adjusters is whether a constituent that caused injury and damage is a “pollutant.” If yes, the claim will most often not be covered under general liability, professional, property, umbrella, or other policies because of the applicability of a pollution exclusion. Based upon our review of 200 cases, we determined that in 140, or 70 percent of the time, the constituent was considered a “pollutant” and the insurance claim was denied. In order to have insurance for “irritants” or “pollutants,” an insured must obtain specific pollution coverage.     

Chinese Drywall and the Thousands of Homes It Has Damaged Is Yet Another Battleground for the Pollution Exclusion

The need to rebuild created by Hurricane Katrina and a building boom led to a shortage of drywall, so builders turned to China for additional drywall. Some of this drywall, however, contained a high sulfur content that, when exposed to heat and humidity, causes sulfide gases to be emitted that corrode wiring and appliances, create a foul smell, and have given rise to claims from homeowners about property damage and possible bodily injury. Insurers’ main defense is once again the pollution exclusion, but the absence of what many consider traditional pollution means the pollution exclusion may not apply. Once again, the forum in which the exclusion is being asserted may be the key.     

Environmental Insurance Policies Are Negotiated Contracts and Not Commodities

Given the current economic climate, the high costs associated with pollution incidents and the resultant remediation and third-party bodily injury and property damage claims emphasizes the importance of ensuring that our clients have environmental policies in place to protect their interests when most General Liability and Property policies cannot. However, as a number of recent court decisions have highlighted, simply procuring a dedicated environmental policy is not enough. Whether acting in the role of attorney, risk manager, or broker, it is of paramount importance that we truly understand the risks inherent in our clients' business so that we can provide them with the best and broadest coverage available. Further, this understanding allows us to properly inform our clients as to the extent of their coverage so that they can guide their business decisions accordingly.     

Global Warming: Will There Be Exposure for Directors and Officers and Will It Be Covered?

This article will explore the potential legal liabilities of corporate officers and directors due to the effects of global warming on the business of their corporation, as well as the insurance coverage issues likely to arise under directors' and officers' (D&O) liability policies in light of those liabilities. The article focuses particularly on the pollution exclusion and the bodily injury and property damage exclusions, and also explores scenarios that may engender attempts by insurers to rescind the policy.     

The Role of the Broker When Environmental Claims Occur

While environmental incidents tend to occur infrequently, they are often serious enough to disrupt the operations of the entities that experience releases of hazardous materials. The consequences of such events may include third-party claims for bodily injury and property damage, orders to clean up contamination, and regulatory actions against responsible parties. Fortunately, environmental insurance is available to provide protection against the financial consequences of a wide variety of pollution events. This article looks at the role of the broker in assisting clients to identify, analyze, and insure against environmental liability. With properly drafted policies and active participation in the claims management process, the broker can play a significant role in assuring that an environmental insurance policy responds as anticipated when an unexpected incident threatens a client's operations.     

Equity in Toxic Tort Litigation: Unjust Enrichment and the Poor*

This paper proposes to explore the current and prospective role of equitable theories and remedies in toxic tort litigation. The argument is for an unjust enrichment remedy in certain property pollution cases. The idea is to remove the monetary incentive for polluting economically depressed areas. Two specific areas of investigation come immediately to mind. First, courts have already embraced equitable remedies to address pollution damages. Under Ayers and its progeny, many states have allowed the equitable remedy medical monitoring. What is important to understand is how legal relief for increased risk claims would have been inadequate and also the propriety of finding an equitable approach. Second, moving from personal injury to real property damage claims, we see a similar opportunity for use of equitable relief under an unjust enrichment theory. Currently, there is much debate about the propriety of restoration damages as opposed to fair market value (FMV) damages for the landowners whose property is damaged by the pollution of another. Each approach has various strengths and weaknesses. A better approach might be to use unjust enrichment on a law and economics basis as a remedy to force polluters to internalize the cost of pollution. For instance, take a polluter who pollutes the neighboring environs in lieu of paying one million dollars in disposal and storage costs. Assume the neighboring properties are only worth three hundred thousand dollars on a FMV approach. Assume further that restoration costs are ten million dollars, but that the relevant government agency would accept a natural attenuation clean‐up approach. How should the remedy be set, and should one consider allowing a de facto pollution easement?     

越南民商事管辖权制度探析

越南国会是越南最高权力机关和立法机关.越南法院分为三级:最高人民法院、地方人民法院和地区人民法院.对于"商事纠纷"的含义,在一些重要方面越南的规则与国际标准不同.<经济纠纷法>列举了经济法庭有权裁决的争议类型.包含"涉外因素"的经济案件,由越南经济法庭审理.地方(区)人民法院行使管辖权的依据是被告营业地或住所在法院管辖区内.管辖权的排除主要表现在以下方面:外交豁免与领事豁免、外国土地和管辖权选择协议.未决诉讼案件原则和不方便法院原则并没有得到越南法学家们的广泛承认.管辖权冲突问题由越南最高人民法院解决.     

Use and Evolution of the Claims-Made Policy Form in Environmental Insurance: Selected Issues

Environmental risks have two basic components: the policyholder's obligation to clean up contaminated property and the policyholder's potential liability to third parties, including the government, resulting from environmental damage. The environmental risks for which policyholders seek coverage include environmental cleanup costs, third-party bodily injury claims, third-party property damage or devaluation claims, fines/penalties for noncompliance, or loss of market share due to lack of environmental stewardship. To be certain that all aspects of potential environmental liability are covered, an expert insurance consultant or broker should be retained to plan the program, analyze policy language and execute the purchase in the most cost effective way.     

Issues in Coverage for Preexisting Pollution Conditions under Pollution Liability Insurance Policies

Pollution liability insurance policies provide coverage for claims and costs associated with pollution conditions that develop and commence during the policy period. Coverage under such policies for claims arising from pollution conditions that existed before the policy incepted, however, varies significantly under different policy forms. This article addresses the two principal means that insurers have utilized to limit the risks associated with preexisting pollution conditions under pollution policies: the known conditions exclusion and retroactive date provisions. The article explains that these provisions have received mixed treatment in the courts and are likely to continue to be a focus of future coverage litigation involving environmental impairment liability and pollution legal liability policies.     

Intersecting Issues Involving Asylum in the United States and Cases Arising Under the 1980 Hague Convention on the Civil Aspects of International Child Abduction

The issue of immigration status has become the focal point in some cases arising under the 1980 Hague Convention on Child Abduction. Asylum claims affect both substantive and procedural issues that are presented to state and federal courts. A nexus has developed between undocumented immigrants who are parties to a Hague case, and issues of habitual residence, acclimatization, and grave risk. Asylum claims have forced courts to consider the viability of such claims, requests for stay of Hague cases pending the outcome of asylum claims, the likelihood of deportation, and the effect of grants of asylum on the particular issues in the case. Where asylum has been granted to either a parent or child, substantial consideration has been given to the asylum determination by the court hearing the Hague case.     

Courts Uphold Denials of Coverage Even in the Absence of Mold,Lead, and Asbestos Exclusions

Courts have upheld insurers’ disclaimers on mold, lead, and asbestos claims under comprehensive general liability (CGL) policies, evidencing the importance of maintaining affirmative cover in the emerging environmental insurance marketplace. Removing a CGL mold, lead, or asbestos exclusion is helpful, but insurers may assert a coverage defense and not pay a claim for reasons that have included: failure to meet the burden of proof, failure to trigger coverage, an absolute pollution exclusion, a preexisting condition exclusion, a defective design exclusion, a faulty workmanship exclusion, a business risk exclusion, a known loss or loss in progress, a custody and control exclusion, an owned property exclusion, and late notice. Accordingly, affirmative coverage grants contained in environmental insurance policies are necessary to protect against such losses and maximize recoveries.     

Precedent, Parity, and Racial Discrimination: A Federal/State Comparison of the Impact of Brown v. Board of Education

Questions regarding Brown v. Board of Education 's short-term effect remain unanswered, particularly its comparative impact on federal district courts and state supreme courts. We test this through an analysis of racial discrimination cases in those venues in the twenty-year period bifurcated by the decision in May 1954. Our findings suggest that while federal district courts and state courts were similarly unresponsive to discrimination claims before that date, Brown exerted a significant impact on district court decisions but had little influence at the state level. Furthermore, a third pattern was found in federal appellate courts, where discrimination claims had a high likelihood of pro-minority decisions even before the Supreme Court directive.     

Trans-Regional Courts in China: A Study of Establishment Models and Jurisdictional Rules

The trans-administrative regional (trans-regional) court was created as part of China’s judicial reforms in 2014. Thus far, only two trans-regional courts have been established, namely the Shanghai No. 3 and Beijing No. 4 Intermediate People’s Courts. An important reason for this slow pace is that the trans-regional court has transcended the current structural framework under the Organic Law of the People’s Courts in that (1) it is neither a specialized court that hears certain types of cases, (2) nor a local court established completely in keeping with administrative divisions. Therefore, the legal nature and status can only be clarified and justified when there is a clear definition of this new court system in the Organic Law of the People’s Courts. Several models, namely the independent set-up model, full reshuffling model and limited transformation model, have been proposed for the establishment of trans-regional courts. The most practical and efficient among these models is the limited transformation model, aiming to reconstruct the existing railway transportation courts. The trans-regional courts may have exclusive, alienage, or supplemental jurisdiction. Each form addresses particular types of special and major trans-regional cases, and other cases based on the theory of consolidation.     

The Aftermath of the Macondo Discovery Well Spill: The Interplay of Claims to the Gulf Coast Claims Facility and Insurance Claims

The processing of claims for compensation arising from the April 20, 2010, explosion of the Deepwater Horizon offshore oil rig and its environmental and economic aftermath has proceeded simultaneously before the Gulf Coast Claims Facility and insurers. The criteria for recovery between these two recipients of claims differ significantly. Compensation from the facility has included claims for purely economic injury, whereas compensation from insurance generally requires, inter alia, a closer geographic or causal nexus to property damage. The resolution of compensation issues both by the facility and insurers will impact whether further disputes arise in the courts. Based upon similar experiences from September 11 and Hurricane Katrina, these issues are likely to continue for several years before they are fully resolved.     

New York Lead-Paint Case Update

The contaminated water supply in Flint, Michigan, highlighted lead issues in a relatively new context: drinking water. Lead-paint lawsuits, however, have filled court calendars for many years in many jurisdictions. This article examines a variety of recent lead-paint decisions issued by courts in New York—from trial level, to appellate, to the state's highest court, the New York Court of Appeals. As these cases suggest, lead-paint complaints against landlords and property owners are likely to continue to be filed in New York courts for quite some time to come.     

The Reasonable Woman Standard: Effects on Sexual Harassment Court Decisions

Some federal courts have used a reasonable woman standard rather than the traditional reasonable man or reasonable person standard to determine whether hostile environment sexual harassment has occurred. The current research examined the impact of the reasonable woman standard on federal district court decisions, controlling for other factors found to affect sexual harassment court decisions. Results indicated that there was a weak relationship between whether a case followed a reasonable woman precedent-setting case and the likelihood that the court decision favored the plaintiff. The implications of our findings for individuals and organizations involved in sexual harassment claims are discussed.     

德国法院体系探析

德国特色法院体系的形成与演变有其深刻的社会历史背景,首先是文化传统,其次是经济体制,第三是工人运动。德国的法院系统由宪法法院、普通法院和专门法院三类组成。宪法法院专门审理违宪案件;普通法院只审理刑事案件和民事案件;专门法院包括(普通)行政法院、财政法院、劳动法院、社会法院、专利法院、军事法院和惩戒法院等。除了(普通)法院和宪法法院具有独立地位外,其他法院均隶属于政府有关部门。德国行政审判权由各级行政法院与劳动法院、社会法院、财政法院等共同行使。专门法院的性质介于行政机关与司法机关之间,但行政机关的性质更多(本质上属于行政司法)。     

“<Emphasis Type="Italic">Peer effects</Emphasis>” or “<Emphasis Type="Italic">quasi</Emphasis>-<Emphasis Type="Italic">peer effects</Emphasis>” in Spanish labour court rulings

The current work seeks to ascertain whether rulings on dismissal cases issued by incumbent judges in Spanish labour courts are influenced by whether they are acting alone in their own court or sharing duties with other judges such as replacement judges, support judges or incumbent judges from other courts. We consider that a court is treated when more than one judge rules in it. Then, an analysis is conducted so as to determine the effect of such a treatment on the percentage of cases ruled in favour of the dismissed worker. The data used in the research are taken from the information recorded at court level provided by the statistics kept by the General Council of the Spanish Judiciary. A total of 2888 observations were available, corresponding to the period spanning 2004 to 2012. As regards the findings, it may be concluded that there is a significant positive impact on the number of dismissal cases ruled in favour of workers when incumbent judges are not acting alone in their court, particularly when the incumbent judge solves cases together with another professional judge.     

Efficiency of 'Simple' Liability Rules When Courts Make Erroneous Estimation of the Damage

The literature on liability rules shows that the damage awards under a liability rule affect the efficiency of the rule. One crucial factor that could affect the damage awards and therefore the efficiency characteristics of liability rules is the error made by a court while estimating the harm suffered by the victims. In this paper efficiency property of what we label as 'simple' liability rules when courts make errors in estimation of the damage is studied in a unified framework. The paper provides a characterization of efficient simple liability rules and shows that the biased court errors act to change the efficiency characterization of simple liability rules. A necessary and sufficient condition for a simple liability rule to be efficient in the presence of upper-biased court errors is provided. The analysis is carried out in a quite general framework.     

The Meaning of Champion Dyeing and Finishing: EIL Insurance Must Be Available in the Year That the Precise Risk Manifested Itself

Champion Dyeing & Finishing Co., Inc. v. Centennial Insurance Company and North River Insurance Company, decided in November 2002, represents a decisive victory for policy holders in environmental coverage litigation involving the availability of EIL insurance after 1985 or 1986. EIL coverage was generally unavailable after 1985 and until 1995, particularly for old leaking underground storage tanks (UST's). The availability issue arises in environmental coverage cases where the court adopts a prorata rather than joint and several theory of allocating responsibility for cleanup costs, and when in such cases there are periods of no insurance, because, for example of the insertion of the absolute pollution exclusion in commercial general liability (CGL) policies. In those circumstances, the courts apply the “willing self-insurer” rule and allocate responsibility to the insured who willingly decided to retain the risk. Until Champion Dyeing, there was little guidance about how to determine availability in the context of site-specific environmental pollution. The case was part of a 1998 declaratory judgment action by a small manufacturing company seeking reimbursement for cleanup costs attributable to pollution from two fuel oil storage tanks found leaking in November 1997. Reversing the trial court's decision, the New Jersey appellate court found that defendants failed to prove insurance available to the insured in 1997 and that therefore the duty to indemnify should have been apportioned solely among the insurers. In doing so, it stressed the necessity of demonstrating that insurance could have been purchased covering the precise risk that manifested, not simply that EIL insurance covering undefined risks was available. Its rationale was based on a recognition of the two essential differences between EIL and CGL insurance: claims made trigger of coverage and coverage of specific pollution conditions rather than generalized occurrences. In addition, testimony at trial failed to demonstrate the availability in 1997 of insurance providing coverage for the risk at issue because the testimony at the insurer's expert lacked foundation. This decision indicates that, in order to prove or disprove availability, the parties must first hire a competent environmental insurance expert and then must ask and answer three questions: What policies were being issued in the market that applied to the particular type of risk during the relevant time period, and especially in the year that the risk manifested? Would the insured have been able to purchase one of these policies or endorsements for its particular risk? Would the policy terms have provided coverage for the specific manifested risk in question? After applying these three questions to a number of hypotheticals with typical fact patterns, it is evident how impossible it is to prove coverage available for UST risks such as in the Champion case and how extremely difficult it will be to do so for non-UST, generally-site specific risks.