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Case Briefs
Insurer Lacks Standing to Subrogate Under CERCLA
On March 15, the U.S. Court of Appeals for the Ninth Circuit held that an insurer lacked standing to bring a subrogation suit under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) because the insurer failed to meet statutory requirements. Chubb Custom Ins. Co. v. Space, 710 F.3d 946 (9th Cir. 2013). The insurer, Chubb, paid $2.4 million under an insurance policy to its insured, Taube-Koret Campus for Jewish Life, for environmental cleanup costs on its property.
The insurer then filed an action against several parties seeking subrogation under ” 107(a) and 112(c) of CERCLA and asserting state law claims for statutory indemnity,
negligence per se and strict liability. The district court dismissed the operative third amended complaint with prejudice, and the Ninth Circuit affirmed on appeal. Amicus curiae briefs were also submitted on behalf of an insurer and United Policyholders.
The majority agreed with the dismissal of Chubb's subrogation claim under '112(c), which provides for statutory subrogation for “any claimant for damages or costs resulting from a release of a hazardous substance ' .” (emphasis added). The term “claimant” is statutorily defined as a person who demands compensation for damages or costs from the Superfund or a potentially responsible party. The court interpreted this definition to require the insured to make a formal demand on the defendants or the Superfund in order for the insurer to properly assert standing for a ' 112 subrogation action. The court felt that requiring the insured to make such a demand was not unduly burdensome as “[i]nsurance companies write their policies in a way to require reasonable cooperation from their insureds.”
The court also agreed that the insurer lacked standing to assert a claim under ' 107(a) which permits private parties to recover certain “costs of response” incurred in connection with the remediation of a polluted site. ' Matthew C. Elstein, Laura G. Ryan and Jeannie P. Lee, Gordon & Rees LLP
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Insurer Lacks Standing to Subrogate Under CERCLA
On March 15, the U.S. Court of Appeals for the Ninth Circuit held that an insurer lacked standing to bring a subrogation suit under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) because the insurer failed to meet statutory requirements.
The insurer then filed an action against several parties seeking subrogation under ” 107(a) and 112(c) of CERCLA and asserting state law claims for statutory indemnity,
negligence per se and strict liability. The district court dismissed the operative third amended complaint with prejudice, and the Ninth Circuit affirmed on appeal. Amicus curiae briefs were also submitted on behalf of an insurer and United Policyholders.
The majority agreed with the dismissal of Chubb's subrogation claim under '112(c), which provides for statutory subrogation for “any claimant for damages or costs resulting from a release of a hazardous substance ' .” (emphasis added). The term “claimant” is statutorily defined as a person who demands compensation for damages or costs from the Superfund or a potentially responsible party. The court interpreted this definition to require the insured to make a formal demand on the defendants or the Superfund in order for the insurer to properly assert standing for a ' 112 subrogation action. The court felt that requiring the insured to make such a demand was not unduly burdensome as “[i]nsurance companies write their policies in a way to require reasonable cooperation from their insureds.”
The court also agreed that the insurer lacked standing to assert a claim under ' 107(a) which permits private parties to recover certain “costs of response” incurred in connection with the remediation of a polluted site. ' Matthew C. Elstein, Laura G. Ryan and Jeannie P. Lee,
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Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Anti-Assignment Override Provisions
UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?