Environmental claims and litigation can be particularly challenging matters. Often, these claims are extremely “fact intensive,” involving issues such as determining when a specific release occurred, the knowledge of the property owner or facility operator as to the cause and existence of the contamination, determining the “trigger” for potential coverage, determining the apportionment scheme for payment of the remediation costs, and analyzing the associated coverage issues and defenses under the applicable insurance policies.
Often, claims for environmental remediation are just one side of the coin. It is not unusual for there to be companion claims by individuals for personal injuries or property damages associated with the environmental contamination at issue. These third-party claims can dwarf the size and scope of the underlying claims for environmental remediation. Issues of exposure, medical causation, past medical histories, the mechanism of injury/disease, and damages are all areas of investigation and discovery that must be fully explored and developed to properly evaluate and defend the claims at issue.
Governmental actions for the cleanup of waste dumps can also be challenging. Many statutes provide for strict liability, without regard to time, knowledge, or volume, and with limited defenses to these actions. In addition to governmental actions, it is very common for residents and workers in the area of a landfill (or dump site) to bring lawsuits asserting claims for personal injuries and the diminution of property value.
At McCormick & Priore, P.C., our attorneys have been defending clients in environmental matters since the mid-1980’s, when federal and state environmental statutes were first enacted. In addition to the typical “Superfund” type of action, we have defended clients in matters ranging from residential underground storage tanks and spills, to large commercial and industrial sites with complex contamination pathways and damages. In addition to defending against third-party environmental claims (including claims by governmental entities), we also represent insurers in first-party claims by their insureds. The defense of these first-party claims often involves a complex analysis of facts underlying the timing/cause of the contamination, as well as an application of the facts to the terms, provisions, and exclusions of the insurance policy. Further, even when it is determined that coverage exists under a policy, there are often issues pertaining to the “apportionment” among various entities/individuals for payment of the remediation costs or other damages that need to be determined.