In an unpublished opinion captioned In Re Spill Fund Lien, DJ No. 129570-02; 954 Route 202, the Appellate Division affirmed the final agency decision of the Spill Compensation Fund (Fund) holding that the lien filed against the property and revenues to recover remediation costs that the Fund expended in cleanup was appropriate under the New Jersey Spill Act (Spill Act). The property owner, Branch 2002 LLC (Branch), had purchased a gas station from a previous owner who was ordered by the New Jersey Department of Environmental Protection (NJDEP) to conduct a remedial investigation and remove or treat contaminated soil from leaking underground storage tanks at the property. Ultimately, the previous owner did not conduct the required remediation, so the NJDEP oversaw remediation of the property using Fund resources. The property was later sold to Branch, with the prior owner’s insurance company indemnifying all subsequent owners for any liability arising out of the prior owner’s discharge. The Fund Administrator filed the initial lien on the property for expenditures and commitments incurred by the Fund in 2002, and then later amended this lien in 2015 to reflect additional costs expended and requested that the Superior Court Clerk enter the addresses of both...
UPDATE: The Deepwater Horizon Drilling Rig Accident Continues to Cause Ripples: Texas Supreme Court Holds That Defense Costs are Not Liabilities Under Insurance Policy
UPDATE: The Supreme Court of Texas recently refused an application for rehearing and declined to revisit its January holding that defense costs are not liabilities under an energy insurance policy. That decision, in the matter captioned Anadarko Petroleum Corporation, et al. v. Houston Casualty Company, et al., stemmed from the April 20, 2010 Deepwater Horizon drilling-rig accident that has been called, “the largest accidental marine oil spill in U.S. history.” The Court held that Lloyd’s of London Underwriters (“Lloyd’s”) were liable to cover approximately $112 million as a result of policy language that the Court interpreted as distinguishing between “liability” and “expenses.” The case involved the Anadarko Petroleum Corporation and Anadarko E&P Company, L.P. (collectively, “Anadarko”) and a group of insurance underwriters led by the Houston Casualty Company (the “Underwriters”). Anadarko was a 25% minority interest holder in the Macondo Well that blew out in the Gulf of Mexico in April 2010. Anadarko reached a settlement agreement with BP under which Anadarko agreed to provide its 25% interest and to pay $4 billion to BP in exchange for a release and indemnity against all other liabilities arising out of the accident. Anadarko’s legal fees and defense expenses were not included...
The Deepwater Horizon Drilling Rig Accident Continues to Cause Ripples: Texas Supreme Court Holds That Defense Costs are Not Liabilities Under Insurance Policy
The Supreme Court of Texas recently issued a decision in which the community of insured parties and insurer parties alike will be interested. The case, Anadarko Petroleum Corporation, et al. v. Houston Casualty Company, et al., stems from the April 20, 2010 Deepwater Horizon drilling-rig accident that has been called, “the largest accidental marine oil spill in U.S. history.” The decision distinguishes between an insured’s “liability” and “expenses” under certain policy language to the consequent of $112 million. The case involved the Anadarko Petroleum Corporation and Anadarko E&P Company, L.P. (collectively, “Anadarko”) and a group of insurance underwriters led by the Houston Casualty Company (the “Underwriters”). Anadarko was a 25% minority interest holder in the Macondo Well that blew out in the Gulf of Mexico in April 2010. Anadarko reached a settlement agreement with BP under which Anadarko agreed to provide its 25% interest and to pay $4 billion to BP in exchange for a release and indemnity against all other liabilities arising out of the accident. Anadarko’s legal fees and defense expenses were not included in the settlement agreement, and Anadarko sought these fees and expenses from the Underwriters pursuant to its “energy package” insurance policy. The policy included...
New Jersey Supreme Court Holds That Claimants in Continuous-Trigger Environmental Coverage Cases Must Exhaust Policy Limits of Solvent Carriers Before Seeking Payment From Fund for Insolvent Carriers
Almost twenty years after establishing a methodology for allocating remediation costs among insurance policies in so-called “long-tail” cases, the New Jersey Supreme Court was faced with a new question: what happens when one of the insurers is insolvent? Applying a 2004 statutory amendment and interpreting it as reversing the result in a 1997 Appellate Division case, the Court held, in Farmers Mutual Fire Insurance Company of Salem v. New Jersey Property-Liability Insurance Guaranty Association that in such a case the policy limits of all solvent carriers must be exhausted before a claimant can recover any benefits from a special statutory fund created to stand in the place of insolvent insurers. The decision has important ramifications for corporations with complex insurance programs and potential environmental issues regarding sites where contamination may have been present over many years.
As the third installment in the series, “From Ink to Occupancy, A Game Plan for a Successful Real Estate Project,” stemming from the Gibbons Women’s Initiative Seminar Series held in May, this blog addresses the question of whether title review alone is sufficient for purposes of ascertaining what restrictions are in place for a property being acquired. The simple answer is NO. All too often commercial buyers anxious to close on a property take shortcuts and limit their due diligence to title review as opposed to conducting land use due diligence. This blog explains why, particularly in New Jersey, it is critical to conduct land use and zoning due diligence in addition to title review prior to the acquisition of a property, so that you can be fully aware of any potential restrictions impacting the property.
For the first time in more than two decades, the Federal Emergency Management Agency (“FEMA”) has updated its Advisory Base Flood Elevation (“ABFE”) maps for New Jersey’s coastal counties. The Christie Administration adopted these new standards as an emergency measure on January 24, 2013, and through formal NJDEP regulations, has now made them permanent. The revised FEMA elevations, which remain subject to change, are anywhere from two to four feet higher on average than the standards that had been in effect prior to Hurricane Sandy. New Jersey residents, particularly those impacted by flooding from Hurricane Sandy, should be aware of this change, as the NJDEP has incorporated these revised maps as the new standard throughout the state for the elevation of reconstructed homes in flood zones.
There is no shortage of buyers anxious to buy distressed mortgages. The simple reason is the possibility of substantial profit if a loan can be purchased at a significant discount and there is a realistic possibility that the borrower or, if it forecloses, the lender, will be able to salvage the property. This is the first of two articles about counseling clients in acquiring distressed commercial mortgage loans. Bankruptcy, special assets such as condominium properties and UCC foreclosures are beyond the scope of these articles.
On June 8, 2010, in Westport Insurance Co. v. Appleton Papers, Inc., the Wisconsin Court of Appeals for the First District held that two insurers, namely Munich Re Ag and Westport Insurance Co., are liable each for $5 million dollars to compensate Appleton Papers, Inc. (Appleton) for cleaning up the sediment contamination in the Fox River. The Fox River is undergoing a cleanup pursuant to oversight by the United States Environmental Protection Agency.