Sometimes simple common law principles are the best way to litigate against insurance companies. Specifically, if the insurance policy calls for a two-year limitations period to sue, make sure your attorney alleges common law negligence against the insurance carrier if you want the benefit of the longer, three-year, statute of limitations period (assuming the facts support a negligence claim, of course).
Could fracking in North Dakota's Bakken shale formation have a direct impact on New York State? Yes, but the impact isn't limited to prices at the gas pump or home energy heating bills. Instead, the fracking operations are leading to a surge in freight trains hauling crude oil along the state's rail lines to a terminal at the port of Albany, New York. Shale formations such as the Bakken produce crude oil along with natural gas during fracking operations, and some claim that Bakken crude may "more dangerous to ship by rail than crude from other areas."
Here's a pop quiz: after an eleven week trial in federal court, a jury hands down a verdict of nearly $105 million against ExxonMobil for contaminating New York City's drinking water. On appeal, the verdict is upheld. What environmental law enabled the jury to find, and the appellate court to affirm, such a large verdict? The Superfund Law? The Clean Water Act? The Resource Conservation and Recovery Act?
Does the destruction of plaintiff's technical data supporting disclosed oil spill investigation reports get a defendant off the hook? Apparently not, decided the Appellate Division (Third Dept.) in a November 2012 decision, rejecting a defense motion to reverse a plaintiff's trial verdict. Defendants had received the reports themselves, without the backup technical data, but had not requested any of the data for nearly a year after the commencement of litigation, well after a document retention policy caused destruction of the backup data.
If you're familiar with the harsh reality of property owner liability under the New York State Navigation Law's Oil Spill Act, this headline shouldn't raise any eyebrows. However, the holding of State of New York v. C.J. Burth Services, Inc., 79 A.D.3d 1298, 915 N.Y.S.2d 174 (N.Y. App. 3rd Dep't 2010), once again confirms the Draconian nature of strict liability for property owners in Spill Act cases.
Under New York Law, property damage is deemed to occur within the period of an occurrence-based policy, if injury-in-fact takes place during the policy period. See Continental Casualty Co. v. Rapid-American Corp., 177 A.D.2d 61 (App. Div., 1992). An insurer may only refuse to defend an action, however, where a comparison of the policy with the underlying complaint shows on its face that there is no potential for coverage. See Ruder & Finn, Inc. v. Seaboard Sur. Co., 52 N.Y.2d 663 (1981).
5. Any claim by any injured person in for the costs of cleanup and removal and direct and indirect damages based on the strict liability imposed by this section may be brought directly against the person who has discharged the petroleum, provided, however, that damages recoverable by any injured person in such a direct claim based on the strict liability imposed by this section shall be limited to the damages authorized by this section.
1. Any person who has discharged petroleum shall be strictly liable, without regard to fault, for all cleanup and removal costs and all direct and indirect damages, no matter by whom sustained, as defined in this section. In addition to cleanup and removal costs and damages, any such person who is notified of such release and who did not undertake relocation of persons residing in the area of the discharge in accordance with paragraph (c) of subdivision seven of section one hundred seventy-six of this article, shall be liable to the fund for an amount equal to two times the actual and necessary expense incurred by the fund for such relocation pursuant to section one hundred seventy-seven-a of this article. 2. The fund shall be strictly liable, without regard to fault, for all cleanup and removal costs and all direct and indirect damages, no matter by whom sustained, including, but not limited to:
3. (a) The owner or operator of a major facility or vessel which has discharged petroleum shall be strictly liable, without regard to fault, subject to the defenses enumerated in subdivision four of this section, for all cleanup and removal costs and all direct and indirect damages paid by the fund. However, the cleanup and removal costs and direct and indirect damages which may be recovered by the fund with respect to each incident shall not exceed: (i) for a tank vessel, the greater of:
(1) one thousand two hundred dollars per gross ton; or
(2) (A) in the case of a vessel greater than three thousand gross tons, ten million dollars; or (B) in the case of a vessel or three thousand gross tons or less, two million dollars;
4. (a) The only defenses that may be raised by a person responsible for a discharge of petroleum are: an act or omission caused solely by (i) war, sabotage, or governmental negligence or (ii) an act or omission of a third party other than an employee or agent of the person responsible, or a third party whose act or omission occurs in connection with a contractual relationship with the person responsible, if the person responsible establishes by a preponderance of the evidence that the person responsible (a) exercised due care with respect to the petroleum concerned, taking into consideration the characteristics of petroleum and in light of all relevant facts and circumstances; and (b) took precautions against the acts or omissions of any such third party and the consequences of those acts or omissions. These defenses shall not apply to a person responsible who refuses or fails to (a) report the discharge, or (b) provide all reasonable cooperation and assistance in cleanup and removal activities undertaken on behalf of the fund by the department. In any case where a person responsible for a discharge establishes by a preponderance of the evidence that a discharge and the resulting cleanup and removal costs were caused solely by an act or omission of one or more third parties as described above, the third party or parties shall be treated as the person or persons responsible for the purposes of determining liability under this article.(b) Nothing set forth in this subdivision shall be construed to hold a lender liable to the state as a person responsible for the discharge of petroleum at a site in the event: (i) such lender, without participating in the management of such site, holds indicia of ownership primarily to protect the lender's security interest in the site, or (ii) such lender did not participate in the management of such site prior to a foreclosure, and such lender: