Florida Supreme Court Rejects Adoption of Daubert Standard

By Bradley T. Guldalian

In Richard Delisle v. Crane Co., __ So. 3d. __, No.: SC16-2182 (Fla., Oct. 15, 2018), the Florida Supreme Court rejected the Florida legislature’s attempt to legislatively adopt the standard for admissibility of expert testimony set forth by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), holding that the legislature’s attempt to codify the Daubert standard in Section 90.702 of the Florida Evidence Code infringed upon the Florida Supreme Court’s rulemaking authority and was unconstitutional. In so holding, the Court reaffirmed that the Frye standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (which requires an expert’s opinion be generally accepted in the relevant scientific community and sufficiently reliable before it is admitted into evidence) remains the law in the State of Florida. Importantly, the Florida Supreme Court noted that the Florida legislature could overrule the Court’s decision and legislatively adopt the Daubert standard so long as the legislature adopts the Daubert standard via a two-thirds vote in both the Florida House of Representatives and the Florida Senate. Given the upcoming election in November, it remains to be seen whether the Florida House of Representatives and the Florida Senate will take up the legislative adoption of the Daubert standard during the next legislative session.

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New York Court Holds Radioactive Materials Exclusion Precludes E&O Coverage for Negligent Phase I Report

By Brian Margolies

In its recent decision in Merritt Environmental Consulting Corp. v. Great Divide Ins. Co., 2018 U.S. Dist. LEXIS 175527 (E.D.N.Y. Oct. 10, 2018), the United States District Court for the Eastern District of New York had occasion to consider the application of a radioactive materials exclusion in a professional liability policy.

Great Divide’s insured, Merritt Environmental, was hired as an environmental consultant by a bank in connection with a mortgage refinance of a property located in Westchester County, New York.  Merritt’s responsibility was to prepare a Phase I environmental report concerning the property, which the bank ultimately relied on in agreeing to the refinance. It was later claimed, however, that Merritt’s report failed to document the full extent of the property’s radium and uranium contamination resulting from its use in the Manhattan Project. Merritt was named in two separate lawsuits as a result of its allegedly faulty report, including one by the bank alleging that Merritt negligently prepared its report.

Merritt sought coverage under the professional liability coverage part of a packaged policy issued by Great Divide.  Great Divide denied coverage on the basis of a policy exclusion barring coverage for “any liability of whatever nature arising out of, resulting from, caused by or contributed by … Radioactive contamination however caused, whenever or wherever happening.”

In considering the exclusion, the court observed that under New York law, the phrase “arising out of” is unambiguous and means “originating from, incident to, or having connection with.” The court further observed that the applicability of an “arising out of” exclusion requires only a “but for” causation. The court concluded that this was satisfied since the claims against Merritt would not exist but for the radioactive materials contaminating the property.  It was not relevant to the court that the suit alleged a cause of action against Merritt based on negligence, “because no liability on the part of Merritt, whether by negligence, professional malpractice or any other theory could exist but for the presence of radioactive contamination.”

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Florida Court Holds No Duty To Defend Data Breach Claim Under CGL Policy

By Brian Bassett

In St. Paul Fire & Marine Ins. Co. v. Rosen Millennium, 2018 U.S. Dist. LEXIS 173072 (Sept. 28, 2018), the U.S. District Court for the Middle District of Florida held that an insurer owed no duty to defend an insured under a CGL policy where the insured was accused of failing to prevent hackers from accessing credit card information held by the claimant.

St. Paul Fire & Marine Insurance Company (“St. Paul”) issued two consecutive commercial general liability policies to Rosen Millennium (“Millennium”) during 2014 and 2015. Millennium provided data security services for Rosen Hotels & Resorts (“RHR”). In 2016, RHR learned that third party malware caused a credit card breach in one of its hotels between September 2014 and February 2016. RHR alleged Millennium’s negligence caused the breach but has not initiated litigation against Millennium.

Millennium sought coverage for the claim from St. Paul, and St. Paul initiated a declaratory judgment action against Millennium and RHR seeking a finding of no coverage.  The defendants argued that the personal injury coverage of the policy was implicated as a result of the alleged disclosure of credit card information. They also contended that the loss of customers’ use of credit cards was covered “property damage,” and the costs incurred by RHR in complying with notification statutes were covered under the policies.

The court first considered the nature of the underlying claim. Because no underlying litigation existed, the court focused on RHR’s notice of claim and demand letter to Millennium. The only relevant allegation in that letter is that a breach occurred within certain dates and that Millennium “made private information known to third parties that violated a credit card holder’s right of privacy.” RHR’s letter failed to mention property damage or costs incurred from complying with the notification statute. Accordingly, the court held that the issue of whether the policies covered any potential “property damage” and any notification costs is unripe.

The court then examined the issue of whether the third party breach was covered by the St. Paul policies. The definition of “personal injury” in the policies included “[m]aking known to any person or organization covered material that violates a person’s right to privacy.” The parties agreed that credit card information was released upon breach, and they agreed that “making known” material was synonymous with “publication” of material. Citing Innovak International, Inc. v. Hanover Ins. Co., 280 F. Supp. 3d. 1340 (M.D. Fla. 2017), the court held that policy coverage required the insured, rather than a third party, to publish the personal information that is the subject of the claim.  As the breach resulted from third party malware, and not from Millennium’s publication of personal information, RHR’s claim was not covered by the St. Paul policies. The court granted St. Paul’s motion for summary judgment and denied defendants’ motions as moot.

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Illinois Court Holds Ten Separate Lawsuits Are Sufficiently Related To Constitute One “Claim”

By Brian Bassett

In Lloyd’s Syndicate 3624 v. Biological Res. Ctr. Of Ill., LLC, 2018 U.S. Dist. LEXIS 160263 (Sept. 19, 2018), the U.S. District Court for the Northern District of Illinois held that Hiscox’s $2 million single “Claim” limit applies to ten underlying lawsuits that involved a similar pattern of alleged wrongdoing.

Hiscox issued a professional and general liability policy (“Policy”) to Biological Resource Center of Illinois, LLC (“BRCI”), which Policy provided coverage on a claims-made basis. The Policy provided limits of $2 million for each “Claim” and $3 million in aggregate. The Policy defined a “Claim” as “any notice received by the Insured of a demand for Damages or for non-monetary relief based on any actual or alleged Wrongful Act.” The Policy further stated that “All Claims based upon or arising out of any and all continuous, repeated or related Wrongful Acts or Accidents committed or allegedly committed by one or more of the Insureds shall be considered a single Claim. . . .”

BRCI was named as a defendant in ten underlying lawsuits arising out of the alleged mishandling and/or sale of human remains. The complaints alleged that BRCI induced plaintiffs or their decedents to donate human remains for medical or scientific purposes, but then BRCI improperly sold, mishandled and/or desecrated the remains.

BRCI tendered the suits to Hiscox and Hiscox funded BRCI’s defense costs in the underlying lawsuits under a reservation of rights. Both parties agree that Hiscox paid more than $2 million in “Claim Expenses” in defending the claim, as that term was defined to include attorneys’ fees.

Hiscox filed a declaratory judgment action requesting an adjudication that it owe no further duty to defend or indemnify because the underlying lawsuits constitute a single “Claim,” and the “Claim Expenses” exceeded the $2 million per “Claim” limit of liability. BRCI argued that the underlying lawsuits qualified as separate, unrelated “Claims” and therefore Hiscox should continue defending the underlying lawsuits until the $3 million aggregate limit is reached.

In determining the number of “Claims” asserted against BRCI, the court focused its analysis on the term “related” in the context of phrase, “continuous, repeated, or related Wrongful Acts.” The court defined the term “related” broadly. The court cited Gregory v. Home Ins. Co., 876 F.2d 602 (7th Cir. 1989), where the Seventh Circuit found the term “related” to incorporate both logical and causal connections. The court cited to similar definitions of “related” by the Illinois Appellate Court in Cont’l Cas. Co. v. Howard Hoffman & Assocs., 955 N.E.2d 151, 162-63 (Ill. App. Ct. 2011).

The court then held that the underlying lawsuits constitute a single “Claim” under the Policy. The underlying complaints all alleged that (1) BRCI promised to use the human remains for medical and/or scientific purposes; (2) BRCI falsely represented and breached its duty by mishandling and/or selling the human remains; and (3) this conduct was discovered following an FBI raid. Because the underlying cases are all based upon the same conduct, the court found the cases plainly related under the Policy. Further, it did not matter that the underlying lawsuits contained varying causes of action, or identified different body parts sold by BRCI at different periods of time.

Instead, as the claims pertained to the same specific course of wrongdoing – BRCI’s unauthorized mishandling and/or sale of body parts – the suits were sufficiently related and constitute one “Claim.” The court granted judgment on the pleadings to Hiscox.

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New York Court Holds No Additional Insured Coverage Where Loss Not Proximately Caused BY Named Insured’s Negligence

By Brian Margolies

In its recent decision in Pioneer Cent. Sch. Dist. v Preferred Mut. Ins. Co., 2018 N.Y. App. Div. LEXIS 6621 (N.Y. App. 4th Dep’t Oct. 5, 2018), the New York Appellate Division for the Fourth Department had occasion to visit the “proximate cause” issue for additional insured coverage raised by the Court of Appeals in Burlington Ins. Co. v NYC Transit Authority, 57 N.Y.S.3d 85 (N.Y. 2017).

J&K Kleanerz contracted to perform janitorial services for the Pioneer Central School District. The contract required that Kleanerz name Pioneer as an additional insured under its general liability policy and that it indemnify Pioneer for any harms arising or resulting from any act, omission, negligence or misconduct. At issue was coverage for a claim brought against Pioneer by an employee of Kleanerz who alleged that she slipped and fell on ice in a school parking lot after she had exited the school upon completion of her shift for the day.

Pioneer sought additional insured status for the suit under Kleanerz’s general liability policy, which contained an endorsement extending additional insured status to persons or entities, where required by written contract, for injuries “caused, in whole or in part” by Kleanerz’s acts, errors or omissions. Citing to the Court of Appeals’ 2017 decision in Burlington, the court observed that the appropriate standard for determining additional insured status under comparable wording is whether the insured was the “proximate cause” of the injury, not merely a “but for” cause.

The court held that Pioneer failed to establish this proximate cause requirement since Kleanerz had no responsibility for clearing snow and ice from the school’s parking lot, and therefore was not the proximate cause of the accident. In reaching this decision, it rejected Pioneer’s argument that Kleanerz caused the accident by instructing the injured employee to exit the school through a particular door near the parking lot. The court reasoned that exiting through that particular door may have allowed for the accident to happen, but it was not the cause of the accident. In other words, plaintiff’s use of that particular door was a “but for” cause of the accident, but it was not the proximate cause of the accident.

Based on this finding, as well as its conclusion that Kleanerz’ contractual indemnity obligation was not triggered by the accident, the court concluded that Preferred Mutual, as the general liability insurer of Kleanerz, had no indemnity obligation to Pioneer, and that as a consequence, it could have no defense obligation either.

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North Carolina Court Holds No E&O Coverage for Qui Tam Action

By Brian Margolies

In its recent decision in Affinity Living Grp., LLC v. Starstone Specialty Ins. Co., 2018 U.S. Dist. LEXIS 163655 (M.D. N. Car. Sept. 25, 2018), the United States District Court for the Middle District of North Carolina had occasion to consider a professional liability insurer’s coverage obligation with respect to a qui tam proceeding.

Affinity Living and one of its principals were named as defendants in a qui tam action brought under the federal False Claims Act, and a similar North Carolina statute, for alleged Medicaid fraud committed in connection with their operation of adult care homes. Affinity sought coverage under a primary layer professional liability policy issued by Homeland Insurance Company.

While the Homeland policy afforded broad coverage for loss resulting from the insured’s professional services, the policy contained exclusions for any claim involving any actual or alleged:

(4) Dishonest, fraudulent, criminal or intentionally malicious act, error or omission by an Insured; . . . or the gaining of any profit, remuneration or advantage by an Insured to which such Insured was not legally entitled, including, but not limited to, health care fraud . . . [or]

(16) Claim made by or on behalf of any federal, state or local governmental or regulatory agency or entity, including but not limited to any Claim alleging health care fraud . . . .

Considering first the fraudulent acts exclusion, the court agreed that the qui tam claim consistently and repeatedly alleged that the insureds had engaged in false and fraudulent acts, and that the predicate conduct for the False Claims Act (and the state analogue) was dishonest conduct. The court, therefore, rejected the assertion that the suit could be read as alleging negligent or inadvertent conduct potentially insurable under the Homeland policy. It also found that the underlying suit alleged that the insured acted for the purpose of gaining profit to which it was not legally entitled by submitting bills for reimbursement to the government for services never rendered. The court concluded, therefore, that the exclusion applied on its face. The court reasoned similarly with respect to Exclusion 16, applicable to any claim asserted by a governmental agency. Since the suit alleged health care fraud, explained the court, the exclusion applied to bar coverage.

In reaching its holding that Homeland had no coverage obligations with respect to the underlying suit, the court rejected the insureds’ argument that Homeland was required to “investigate the veracity of the claim” before denying coverage rather than denying coverage solely based on the allegations in the complaint. The court observed that the policy exclusions applied to claims involving mere allegations of dishonesty or health care fraud, and that because the facts as alleged were not even arguably covered, Homeland had no defense or indemnity obligation.

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New York Court Holds Disgorgement Payments Uninsurable as a Matter of Public Policy

By Brian Margolies

In its recent decision in J.P. Morgan Sec., Inc. v. Vigilant Ins. Co., 2018 N.Y. App. Div. LEXIS 6130, the New York Appellate Division, First Department, had occasion to revisit the issue of insurability of disgorgement of ill-gotten gains under professional liability policies.

Bear Stearns sought coverage under its primary and excess policies in connection with its alleged securities law violations whereby it earned hundreds of millions of dollars at the expense of mutual fund shareholders. Following an SEC investigation, Bear Stearns agreed to pay disgorgement in the amount of $160 million, as well as $90 million in civil penalties. Bear Stearns’ professional liability insurers denied coverage for these payments on the basis that they did not come within their policies’ definition of “Loss,” defined in relevant part as:

(1) compensatory damages, multiplied damages, punitive damages where insurable by law, judgments, settlements, costs, charges and expenses or other sums [Bear Stearns] shall legally become obligated to pay as damages resulting from any Claim or Claim(s);

(2) costs, charges and expenses or other damages incurred in connection with any investigation by any governmental body or self-regulatory organization (SRO), provided however, Loss shall not include:

(i) fines or penalties imposed by law; or . . .

(v) matters which are uninsurable under the law pursuant to which this policy shall be construed.”

The declaratory judgment action had a long history. In 2011, the Appellate Division affirmed the trial court’s decision granting the insurers’ motion to dismiss Bear Stearns’ coverage action, concluding that Bear Stearns, as a matter of public policy, was not entitled to coverage for disgorgement of ill-gotten gains. The decision, however, was reversed by New York’s Court of Appeals in 2013 based on a finding that the insurers had not satisfied their burden, on a motion to dismiss, of demonstrating that Bear Stearns was not entitled to pursue insurance recovery for these amounts. On remand in 2017, the trial court granted summary judgment in favor of Bear Stearns, concluding among other things that the disgorgement payment constituted “Loss” because it represented third-party gains.

On appeal, the insurers argued that the United States Supreme Court’s decision in Kokesh v Securities and Exchange Commission, 198 L. Ed. 2d 86 (2017), decided after the Court of Appeal’s 2013 ruling, conclusively established that SEC disgorgement payments are a penalty. In particular, the Kokesh Court ruled that a disgorgement payment “(i) is imposed as a consequence for a wrong committed against the public, rather than a wrong against particular individuals; (ii) is meant to punish the violator and deter others from similar violations; and (iii) in many cases, does not compensate the victims of securities violations; rather, the wrongdoer pays disgorged profits to the district court, which has discretion to determine how and to whom to distribute the money.”

The Appellate Division concluded that the rationale in Kokesh, which was not decided in an insurance context, should apply with equal force to the question of whether disgorgement payments are insurable. Specifically, the court reasoned that because the purpose of SEC disgorgement payments are to penalize the wrongdoer and deter future misconduct, such amounts are uninsurable as a matter of public policy. The court further reasoned that as a penalty, the disgorgement payment necessarily did not come within the policies’ definition of “Loss.”

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Florida Court of Appeals Rejects Insurer’s Attempt to Intervene in Underlying Lawsuit to Submit Special Interrogatories

By Jeremy Macklin

On August 10, 2018, the Florida Court of Appeals for the Second District upheld a trial court’s dismissal of an insurance company’s intervention in a tort lawsuit brought against its insured for the purposes of submitting special interrogatories and verdict forms.

In Houston Specialty Ins. Co. v. Vaughn, 2018 Fla. App. LEXIS 11197, 2018 WL 3795785 (Fla. 2d DCA Aug. 10, 2018), the insured, All Florida Weatherproofing and Construction, Inc. (“All Florida”) provided pressure washing, roof coating, and other roof-related services. Houston Specialty issued a general liability policy to All Florida. In 2012, a worker fell off a roof while applying protective coating on behalf of All Florida. The worker and his family sued All Florida in connection with the worker’s injuries.

The Houston Specialty Policy contained an exclusion for injuries sustained to employees but provided coverage through an endorsement for injuries sustained to independent contractors. Houston Specialty filed a declaratory judgment action against All Florida seeking a determination that the worker was an employee of All Florida. Houston Specialty also filed a motion to intervene in the tort lawsuit filed by the worker against All Florida for the purpose of submitting special interrogatories and special verdict forms relevant to the worker’s employment status. In its motion to intervene, Houston Specialty argued that limited intervention was proper to avoid conflicting findings and inconsistent results.

The trial court granted Houston Specialty’s motion to intervene, but also held that “[a]ny party may file a motion to sever in the future in the event that circumstances change or that intervention otherwise subjects any party to unfair prejudice.” Following that order, and after rejecting Houston Specialty’s defense, the parties to the tort lawsuit agreed to resolve the tort lawsuit through non-binding arbitration. The court ordered Houston Specialty to participate in arbitration, despite the company’s disagreement to the method chosen for resolution. The arbitrator found that the roofer was not All Florida’s employee and also liable for eighty percent of his own injuries.

Several legal battles ensued from the events leading up to and following the arbitration award. In 2017, following the arbitration award and other developments in related judicial proceedings, the worker filed a motion to dismiss Houston’s intervention, which the court granted. Houston Specialty appealed the trial court’s order.

The Florida Appellate Court utilized a two-part test for determining whether Houston Specialty’s intervention was proper. First, the trial court must make a preliminary determination as to whether “the interest asserted is appropriate to support intervention.” Second, the trial court must exercise its discretion whether to permit intervention.

As respects part one, the Florida Appellate Court held that Houston Specialty only presented a speculative or contingent interest – i.e., that Houston Specialty will be harmed if the trial court enters judgment against its insured and then the insured seeks to enforce the judgment against Houston Specialty. Unpersuaded, the court held that Houston Specialty failed to show a direct or immediate interest in the state court lawsuit. The court reasoned that Houston Specialty’s position contradicts Florida’s nonjoinder statute, which states: an injured third party may not file a direct cause of action against a liability insurer unless it obtained either a settlement or verdict from the insured. The court held that the statute fosters a jury’s determination of an insured’s liability and damages unaffected by the availability of insurance.

With respect to the abuse of discretion part of the intervention test, the Florida Appellate Court weighed several factors (including derivation of the asserted interest, any pertinent contractual language, the size of the interest, the potential for conflicts or new issues, and other relevant circumstance) to hold that the trial court did not abuse its discretion when it denied Houston Specialty’s intervention.

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Illinois Court Holds That The Right To Be Free From Nuisance Is Not A Claim For “Personal And Advertising Injury”

By Brian Bassett

In NuWave, LLC v. Cincinnati Specialty Underwriters Ins. Co., 2018 U.S. Dist. LEXIS 151218 (Sept. 5, 2018), the U.S. District Court for the Northern District of Illinois held that the “right to be free from nuisance” does not qualify as a claim for “personal and advertising injury” under a CGL policy.

NuWave, LLC (“NuWave”) obtained two successive CGL policies with Cincinnati Specialty Underwriters Insurance Company (“Cincinnati”). Under these policies, Cincinnati agreed to cover “personal and advertising injury,” which was defined to include oral or written publication of material that violates a person’s right to privacy. The policies did not define the “right to privacy.”

The West Virginia Attorney General (“WVAG”) filed suit against NuWave claiming that NuWave engaged in unauthorized telemarketing. NuWave was alleged to have falsely advertised “free” products and then charged exorbitant fees for shipping and handling, employed deceptive sales practices, coerced consumers to remain on the phone for extended periods to purchase additional products, charged unlawful restocking fees, misled consumers about the identity of the caller and purpose of the call, sold products with an illusory value, and failed to comply with the West Virginia Telemarketing Act, the West Virginia Prizes and Gifts Act, and the West Virginia Consumer Credit and Protection Act.

NuWave tendered the suit to Cincinnati and Cincinnati declined coverage. NuWave then filed a declaratory action seeking to recover defense and indemnity costs from Cincinnati.

NuWave argued a duty to defend was owed as the underlying complaint alleged that NuWave prolonged phone calls with consumers, which constituted a violation of the consumer’s right to privacy. NuWave contended that the right to privacy includes the right to be free from nuisance, thereby satisfying the insuring agreement of the policy’s “personal and advertising injury” coverage.

The district court rejected NuWave’s arguments and found Cincinnati did not owe a defense for the suit. According to the court, NuWave offered an inaccurate characterization of the right to privacy as announced by the Illinois Supreme Court in Valley Forge Ins. Co. v. Swiderski Elecs., Inc., 860 N.E.2d 307 (Ill. 2006). NuWave asserted that the court in Valley Forge recognized that the right to privacy includes the “right to be free from nuisance.” However, the Illinois Supreme Court in Valley Forge defined privacy based on Black’s Law Dictionary – which makes no reference to the “right to be free from nuisance.” NuWave provided no other support for its position.

Further, the underlying factual allegations did not support NuWave’s argument. NuWave employees did not invade consumer privacy because it was the consumers that initiated calls with NuWave. The complaint does not mention any unsolicited communication initiated by any NuWave employee. The court recognized that an intrusion upon seclusion in tort depends on the

highly offensive prying into the physical boundaries or private affairs of another person. Merely keeping a consumer on the phone after the consumer voluntarily called did not fit within the coverage of the policies.

The District Court therefore held that the facts alleged in the WVAG complaint did not fall within the coverage of NuWave’s insurance policies with Cincinnati, and Cincinnati owed no duty to defend or indemnify NuWave in the WVAG suit.

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California Court Holds No Coverage Under Pollution Policy for Structural Improvements

By Brian Margolies

In its recent decision in Essex Walnut Owner L.P. v. Aspen Specialty Ins. Co., 2018 U.S. Dist. LEXIS 138276 (N.D. Cal. Aug. 15, 2018), the United States District Court for the Northern District of California had occasion to consider the issue of a pollution liability insurer’s obligation to pay for the redesign of a structural support system necessitated by the alleged presence of soil contamination.

Aspen’s insured, Essex, owned a parcel of property it was in the process of redeveloping for commercial and residential purposes.  The project required excavation activities in order to construct an underground parking lot, and as part of this process, Essex designed a temporary shoring system comprising tied-in retaining walls in order to stabilize the area outside of the excavation.  During the excavation work, construction debris was encountered requiring removal.  Aspen agreed to pay for a portion of the costs to remove and dispose the debris under the pollution liability policy it issued to Essex.

The litigation between the parties concerned unconfirmed debris located outside of the excavated area, which Essex believed caused the shoring system to fail.  While Essex did not seek coverage for locating and removing this debris, it nevertheless contended that it was entitled to coverage under its policy to redesign and reimplement the shoring system.  Aspen denied coverage for these costs on the basis that the debris outside of the excavated area was not a pollutant, and that in any event, the costs of redesigning the shoring system was not a “clean-up cost.”

The court declined to reach the issue of whether the debris qualified as a pollution condition,  instead focusing on the question of whether redesigning the shoring system qualified as a “clean-up cost,” defined by the Aspen policy in part as “reasonable and necessary expense … to investigate, abate, contain, treat, remove, remediate, monitor, neutralize or dispose of contaminated soil, surface water or groundwater or other contamination caused by a pollution condition … .”  While Essex argued that the shoring system was necessary to “contain” or “neutralize” the debris outside of the excavated area, the court disagreed, concluding that the purpose of the shoring system was to provide structural support for the construction project, not to address the debris condition.  As the court observed, “Although the redesign of the shoring system addressed the instability in the soil that was purportedly due to the debris, the revised shoring system neutralized instability, not contamination of the soil.”

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