Insurance Litigation

The firm has represented numerous clients in the litigation of claims under a variety of types of insurance policies, including historical comprehensive general liability ("CGL") policies and more modern environmental insurance products. We have litigated cases at both the trial and appellate levels in the state and federal courts, including cases in the federal courts of Pennsylvania, New Jersey, New York, and Massachusetts. We have also successfully negotiated settlements of insurance claims without resort to litigation.

Frequently, our representation of clients on their insurance issues compliments our representation of the same client on the environmental regulatory and remediation issues at the same site. In this context, we have worked with experts in the environmental and insurance areas, including insurance "archeologists," underwriters, and brokers to reconstruct historical policy terms; insurance adjusters to quantify the claim; and geologists, hydrogeologists, archeologists, chemists, and other environmental experts to date historical contamination, identify and implement appropriate remediation, and quantify the recoverable remediation costs.

Our insurance litigation experience includes the following representative matters:

• We represented an industrial client to recover costs associated with a long-term, multimillion dollar remediation of solvent contamination from a leaking underground storage tank used in industrial processes over a 20-year period. UTI Corp. v. Fireman's Fund Ins. Co., 896 F. Supp. 362 (D.N.J. 1995) (in a case of first impression, holding that an insurer may be estopped by its conduct from enforcing a policy provision that excluded coverage for all but "sudden and accidental" releases).
• In the first reported decision involving an environmental "cost cap" policy, MGKF represented a redeveloper through trial and appeal in determining the scope of coverage provided by a cost cap policy purchased in connection with the acquisition and redevelopment of a listed Superfund site. Frazer Exton Dev., L.P. v. Kemper Envtl., Ltd., 2004 WL 1752580 (S.D.N.Y. 2004), aff'd, 153 F. App'x 31 (2d Cir. 2005). We also obtained ancillary relief from the court for our client. Frazer, 2007 WL 756494 (S.D.N.Y. 2007).
• The firm represented an industrial client through litigation and settlement where the client was seeking insurance coverage under historical liability policies for a federal Superfund site.
• We asserted and settled a claim under a property insurance policy on behalf of a client that had suffered property damage caused by anthrax contamination.
• MGKF represented a school district in asserting and settling its claims under a property insurance policy for environmental damage caused to its school buildings by a hurricane.
• We represented a homeowner through litigation and settlement in obtaining full value of a home for environmental damage caused by soot from heating oil burner "blowback."
• We represented a restaurant owner in asserting and settling a claim for property damage and cleanup costs, including claims by the local sewer authority, associated with a ruptured fuel oil tank.
• The firm obtained complete coverage for an industrial client under an environmental insurance policy we had negotiated on the client's behalf for a personal injury claim alleging exposure to a hazardous substance taken home in an employee's work clothes. The insurer subsequently changed its policy language to expressly exclude this type of claim in all future policies offered.
• We obtained complete coverage for an industrial client, through the litigation and settlement of multiple claims under different policies, where a personal injury claim had been asserted against the client arising from work performed by a contractor during the cleanup of a contaminated site and where cleanup costs were also recovered.
• MGKF has represented numerous clients in asserting claims under historical CGL policies for investigation and cleanup costs at contaminated properties, including claims involving multiple sites and multiple policies and insurers.