“You’re Out of Here!” -- CERCLA (Superfund) Federal Preemption of State Environmental Claims in State Courts
October 20, 2016 —
Joshua J. Anderson & John E. Van Vlear – Newmeyer & Dillion LLPThe Comprehensive Environmental Response, Compensation, and Liability Act, 42
U.S.C § 9601 et seq. (“CERCLA”), commonly referred to as “Superfund,” is a federal statute
that provides funding and cost-recovery to address our nation’s worst hazardous-waste
sites. While CERCLA generally vests United States District Courts with exclusive original
jurisdiction over all related controversies, section 113(h) of the Act delays such jurisdiction
while the United States Environmental Protection Agency supervises or undertakes
environmental response action plans. What impact does this delayed federal jurisdiction
have on state law claims brought in state courts? Short answer: “You’re out of here!”
Litigants are precluded from bringing claims in state court that “challenge” environmental
response actions under CERCLA during the pendency of those actions.
Reprinted courtesy of
Joshua J. Anderson, Newmeyer & Dillion LLP and
John E. Van Vlear, Newmeyer & Dillion LLP
Mr. Anderson may be contacted at joshua.anderson@ndlf.com
Mr. Van Vlear may be contacted at john.vanvlear@ndlf.com
Read the court decisionRead the full story...Reprinted courtesy of
Court of Appeals Finds Additional Insured Coverage Despite “Care, Custody or Control” Exclusion
September 30, 2019 —
Garret Murai - California Construction Law BlogWhen things go wrong on a construction project it’s often a scramble of finger pointing. In McMillin Homes Construction, Inc. v. National Fire & Marine Insurance Company, Case No. D074219 (June 5, 2019), the California Court of Appeals for the 4th District considered whether an additional insured exclusion, excluding “property in the care, custody or control of the additional insured,” precluded a duty to defend by an insurer.
McMillin Homes Construction, Inc. v. National Fire & Marine Insurance Company
McMillin Homes Construction, Inc. was the developer and general contractor on a residential project known as Auburn Lane in Chula Vista, California. McMillin subcontracted with Martin Roofing Company, Inc. to perform roofing work. Under the subcontract, Martin was required to obtain commercial general liability insurance naming McMillin as an additional insured.
The commercial general liability insurance policy secured by Martin was issued by National Fire and Marine Insurance Company. As is typical, the policy covered “property damage” and “personal injury” arising out of an “occurrence” during the policy period. McMillin was covered as additional insured under ISO endorsement form CG 20 09 03 97.
Read the court decisionRead the full story...Reprinted courtesy of
Garret Murai, Wendel, Rosen, Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Scientists Are Trying to Make California Forests More Fire Resilient
June 21, 2021 —
Laura Bliss - BloombergTo the untrained eye, the scrubby slope off Wentworth Springs Road in the Eldorado National Forest looks like any other patch of Sierra Nevada ridgetop. Tufted in native shrubs and flecked by darkened pine stumps, it’s part of a 30,000-acre swath of land that was deforested in 2014, when the King Fire tore through 17 miles of canyon in less than six hours.
But Dana Walsh can see what’s unique. On a recent Sunday morning, the USDA Forest Service forester bent over a white flag pinned into the ground to mark a barely-visible seedling. As she points to other seemingly camouflaged baby conifers nearby, what starts to emerge is a subtle pattern she calls cluster planting.
“It’s tough to make out unless you know to look for it,” she said. “But once you see a tree, then you can spot the five or six planted near it. Then there’s nothing. Then there’s another five or six. Then there’s nothing.”
Read the court decisionRead the full story...Reprinted courtesy of
Laura Bliss, Bloomberg
Safeguarding the U.S. Construction Industry from Unfair Competition Abroad
November 07, 2022 —
Ric Macchiaroli - Gravel2Gavel Construction & Real Estate Law BlogIn April 2015, the U.S. International Trade Commission (ITC) issued an exclusion order prohibiting the importation of certain foreign-made crawler cranes into the United States for a period of at least 10 years. That order was the result of a 20-month investigation by the ITC, initiated by a Wisconsin-based crane manufacturer based on allegations of patent infringement and trade secret misappropriation by a China-based company. Defined by powerful injunctive remedies, unique rules, and a lightning-fast docket, the ITC can help protect American industry from unfair acts in the importation of articles into the United States. This post explores the traits that make the ITC an attractive venue for potential complainants.
ITC Site Plan
The ITC is a specialized trade court located in Washington, D.C., that has broad authority to investigate and remedy unfair trade practices. One of the ITC’s primary functions is to conduct unfair import investigations, also known as “section 337” investigations, after the authorizing statute. A section 337 investigation can be instituted based on any number of unfair acts, including, but not limited to, patent infringement (utility and design), registered and common law trademark infringement, copyright infringement (including violations of the Digital Millennium Copyright Act), trade dress infringement, and trade secret misappropriation. Business torts such as passing off, false advertising, and tortious interference with business relations have also formed the bases of investigations.
Read the court decisionRead the full story...Reprinted courtesy of
Ric Macchiaroli, PillsburyMr. Macchiaroli may be contacted at
ric.macchiaroli@pillsburylaw.com
Hybrid Contracts for The Sale of Goods and Services and the Predominant Factor Test
February 15, 2021 —
David Adelstein - Florida Construction Legal UpdatesFlorida’s Uniform Commercial Code (also known as the UCC) applies to transactions for goods. “Goods” is defined by Article II of the UCC as “all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (chapter 678) and things in action.” Fla. Stat. s. 672.105(1).
The UCC does NOT apply to transactions for services. Transactions for services are governed by common law.
Oftentimes, transactions or contracts include BOTH goods and services. In this scenario, referred to as a hybrid contract, does the UCC or common law apply? In this scenario, courts apply the predominant factor test to determine whether the UCC or common law governs the transaction:
Whether the UCC or the common law applies to a particular hybrid contract depends on “whether the[ ] predominant factor, the [ ] thrust, the[ ] purpose [of the contract], reasonably stated, is the rendition of service, with goods incidentally involved (e.g., contract with artist for painting) or is a transaction of sale, with labor incidentally involved (e.g., installation of a water heater in a bathroom).” In such instances, the determination whether the “predominant factor” in the contract is for goods or for services is a factual inquiry unless the court can determine that the contract is exclusively for goods or services as a matter of law.
Allied Shelving & Equipment, Inc. v. National Deli, LLC, 154 So.3d 482, 484 (Fla. 3d DCA 2015) (citations omitted).
Read the court decisionRead the full story...Reprinted courtesy of
David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Travelers’ 3rd Circ. Win Curbs Insurers’ Asbestos Exposure
November 21, 2017 —
Gregory D. Podolak - Saxe Doernberger & Vita, P.C.Originally published by CDJ on May 3, 2017
In breaking news this week, LAW360.com posted that the Third Circuit ruled Friday that “a common exclusion found in a Travelers policy bars coverage for claims arising out of asbestos in any form, limiting insurers’ potential exposure to asbestos injury claims by precluding policyholders from arguing that the exclusionary language is ambiguous and doesn’t extend to products containing the carcinogen.”
In its detailed analysis of the decision, LAW360 turned to Greg Podolak for his analysis.
Gregory D. Podolak, managing partner of Saxe Doernberger & Vita PC’s Southeast office, said the ruling is a cautionary tale that should galvanize policyholders and their insurance brokers to take a closer look at policies to delete or curtail broad “arising out of” language in exclusions. Otherwise, insureds could find themselves without any coverage for claims even remotely related to a certain product, he said.
Read the court decisionRead the full story...Reprinted courtesy of
Gregory D. Podolak, Saxe Doernberger & Vita, P.C.Mr. Podolak may be contacted at
gdp@sdvlaw.com
Edward Beitz and William Taylor Recognized by US News – Best Lawyers as a "Lawyer of the Year"
August 31, 2020 —
Edward Beitz & William Taylor - White and WilliamsWhite and Williams is proud to announce that Edward Beitz and William Taylor have been recognized by U.S. News – Best Lawyers® as a “Lawyer of the Year” in their respective practices in Philadelphia. Ed was named in the area of Medical Malpractice and Bill was named in Construction Law. "Lawyer of the Year" recognitions are awarded to individual lawyers with extremely high overall peer-feedback for a specific practice area and geographic location.
Ed is a member of the Healthcare Group and focuses his practice on medical malpractice defense, defending doctors, nurses, physician assistants and hospitals at the trial and appellate court levels, as well as general liability matters. He has successfully defended numerous medical malpractice cases at trial involving complex issues of the human anatomy, such as cardiac surgery, neurosurgery, orthopedic surgery, nursing care, obstetrical complications, nerve injury and vascular injury. Ed has authored briefs on appellate issues in healthcare and coverage matters to the Superior Court of Pennsylvania, the New Jersey Appellate Division and the Third Circuit Court of Appeals.
Reprinted courtesy of
Edward Beitz, White and Williams and
William Taylor, White and Williams
Mr. Beitz may be contacted at beitze@whiteandwilliams.com
Mr. Taylor may be contacted at taylorw@whiteandwilliams.com
Read the court decisionRead the full story...Reprinted courtesy of
A Court-Side Seat: Appeals and Agency Developments at the Close of 2020
December 29, 2020 —
Anthony B. Cavender - Gravel2GavelTHE FEDERAL APPELLATE COURTS
The U.S. Court of Appeals
On November 23, 2020, the court, in a 2-to-1 vote, rejected the plaintiff’s request for an emergency injunction pending appeal in the case of Manzanita Band of Kumeyaay Nation, et al. v. Wolf. The majority held the requirement for such relief did not meet the requirements set forth in Winter v. NRDC, 555 US 7 (2008). Here, the plaintiffs allege that that the government’s construction of a border wall violates several environmental laws that were illegally waived by the Secretary of the Interior. Judge Millett dissented in part because the plaintiffs demonstrated a likelihood of success on the merits. She pointed to the argument that the authority of the Secretary—or Acting Secretary—to take these actions has been successfully challenged in several federal district courts. An expedited pleading schedule was established by the court.
The U.S. Court of Appeals for the Fourth Circuit
On November 17, 2020, in Ergon-West ,Inc. v. EPA, the court again reversed the EPA’s decision denying regulatory relief to a small refinery seeking a waiver of the renewable fuels mandate of the Clean Air Act. Ergon is a small refinery and requested relief in the basis of the economic harm that compliance would entail. In 2018, the court ruled in Ergon’s favor and remanded the case back to the agency. After relief was again denied, the court held that “Ergon has come forward with sufficient evidence undermining one aspect” of the agency’s latest decision, and the ruling was returned to EPA for additional analysis. It appears that a complicated process has become even more complicated.
Read the court decisionRead the full story...Reprinted courtesy of
Anthony B. Cavender, PillsburyMr. Eyerly may be contacted at
te@hawaiilawyer.com
