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A Primer on the Pollution Exclusion in New York and the Duty to Defend
In June and July of this year, the New York Court of Appeals and the Second Circuit each rendered a new decision on the proper scope and application of the pollution exclusion under New York law with respect to the duty to defend. In Belt Painting Corp. v. TIG Insurance Co., 100 N.Y.2d 377 (N.Y. 2003), the New York Court of Appeals held that an absolute pollution exclusion did not unambiguously exclude coverage for a personal injury claim asserting injury based on paint fumes inside an office building. In W.R. Grace & Co. v. Continental Casualty Co., 332 F.3d 145 (2d Cir. 2003), the Second Circuit held that New York's historical statutory proscription against the insurance of nonsudden, nonaccidental pollution vitiated a policy provision granting coverage for “gradual pollution.” The Second Circuit also confirmed in an important choice-of-law ruling that New York courts will not apply the law of various “site states” to a general liability policy; rather, New York courts will apply the single law of the state with the greatest contacts to the dispute. These cases provide further guidance to practitioners regarding (a) the limited scope of the pollution exclusion under New York law to nonenvironmental type claims, (b) the priority given to New York Insurance Law '46(13)-(14) in the face of conflicting policy provisions, and (c) the growing certainty that New York courts will apply the law of a single state to interpret a policy covering multiple risks in various locations.
Belt Painting Corp.
In Belt Painting, the insured was a painting subcontractor sued by an individual alleging that he was injured as a result of inhaling paint or solvent fumes in an office building where the policyholder was performing stripping and painting work. The insured submitted the claim to its general liability insurer, which denied coverage based on the application of the policy's absolute pollution exclusion. The provision excluded coverage for “`Bodily injury' or 'property damage' which would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants at any time.” The policy defined “pollutants” as “any solid, liquid, gaseous or thermal irritant or contaminant including smoke, vapor, soot, fumes, acid, alkalis, chemicals and waste.”
Yachts, Jets, Horses & Hooch: Specialized Commercial Leasing Models
Defining commercial real estate asset class is essentially a property explaining how it identifies — not necessarily what its original intention was or what others think it ought to be. This article discusses, from a general issue-spot and contextual analysis perspective, how lawyers ought to think about specialized leasing formats and the regulatory backdrops that may inform what the documentation needs to contain for compliance purposes.
Hyperlinked Documents: The Latest e-Discovery Challenge
As courts and discovery experts debate whether hyperlinked content should be treated the same as traditional attachments, legal practitioners are grappling with the technical and legal complexities of collecting, analyzing and reviewing these documents in real-world cases.
Identifying Your Practice's Differentiator
How to Convey Your Merits In a Way That Earns Trust, Clients and Distinctions Just as no two individuals have the exact same face, no two lawyers practice in their respective fields or serve clients in the exact same way. Think of this as a "Unique Value Proposition." Internal consideration about what you uniquely bring to your clients, colleagues, firm and industry can provide untold benefits for your law practice.
Risks and Ad Fraud Protection In Digital Advertising
The ever-evolving digital marketing landscape, coupled with the industry-wide adoption of programmatic advertising, poses a significant threat to the effectiveness and integrity of digital advertising campaigns. This article explores various risks to digital advertising from pixel stuffing and ad stacking to domain spoofing and bots. It will also explore what should be done to ensure ad fraud protection and improve effectiveness.
Turning Business Development Plans Into Reality
This article offers practical insights and best practices to navigate the path from roadmap to rainmaking, ensuring your business development efforts are not just sporadic bursts of activity, but an integrated part of your daily success.