Contra Proferentem Doctrine Does Not Apply
Post 5093
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Polluter's Insurer Loses 25 Year Litigation Over Interpretation of Ambiguous Policies
The Plaintiff (Century) insurer's motion to set aside and modify a jury verdict and for a new trial on certain issues were presented after 25 years of litigation while the defendant sought that its motion to modify the verdict, unanimously modified, on the law.
In Century Indemnity Company v. Brooklyn Union Gas Company, American Reinsurance Co, et al., Brooklyn Union Gas Company v. Century Indemnity Company, Munich Reinsurance America Inc., Appeal Nos. 3551, 3552, 2025 NY Slip Op 03379, Index Nos. 603405/01, 403087/02, Case Nos. 2024-00848, 2024-00850 Supreme Court of New York, First Department (June 5, 2025) the judgment of the trial court was affirmed.
FACTS
Almost 25-year-old litigation continued with a focus on three manufacturing gas plants (MGPs) defendant formerly owned and operated at the Fulton (1880-1928), Citizens (1860-1963) and Metropolitan (1872-1928) sites (collectively, the three sites) in Brooklyn, all of which bordered the Gowanus Canal.
It was undisputed that when processing gas, these MGPs environmentally contaminated the canal and the subsoil at the three sites. In the early to mid-2000s, defendant received a series of orders from both the New York State Department of Environmental Protection and the U.S. Environmental Protection Agency requiring it to investigate and remediate the pollution in the canal and at the three sites.
Century was the excess liability insurer that issued six policies to defendant during the period 1941-1969 to cover liability for third-party property damage. Each of these policies was for a one-year term, contained a self-insured retention of $100,000, and was renewed yearly.
The court was faced with this 2001 action where Century sought a declaration that it lawfully disclaimed excess coverage for contamination remediation and related costs based on defendant's untimely notice of an occurrence. Defendant counter sued to compel coverage.
In 2009, the court affirmed the denial of Century's motion for summary judgment on its claim of untimely notice. Ten years later and relevant to the damages issues raised in this post trial appeal, the court affirmed the motion court's holding that Century's successive policies were subject to a pro rata allocation for all losses resulting from long term, continuous contamination that spanned the successive policy periods.
In 2022, the matter proceeded to trial and the jury returned a verdict for defendant, finding that there was excess coverage for the three sites in differing amounts and that Century's defenses, including untimely notice, lacked merit.
Century argued that no controlling precedent permitted an instruction that the jury must simply perform a pro rata allocation calculation of the potential clean-up costs (damages).
In its cross-appeal, Defendant challenged the court's finding as a matter of law that the per-occurrence limits for multi-year policies and multi-year renewals were for the entire period and did not reset annually.
The Court rejected Century's argument that the trial court should not have apportioned the coverage for cleanup costs.
CONCLUSION
The trial court properly refused to apply the doctrine of contra proferentem to resolve ambiguities in the policy as to whether per-occurrence limits in multi-year policies and multi-year renewals applied on an annual basis. Defendant, which has a large in-house insurance department, processes dozens of claims in house monthly, self-insures for large amounts, and has numerous lawyers and brokers, is sophisticated in insurance coverage matters and thus has sufficient knowledge and bargaining power to craft an agreement to its benefit.
ZALMA OPINION
For 25 years the litigants went back and forth to trial and appellate courts expending much money to obtain or refuse the benefits of an excess insurance policy only to find that since the plaintiff insurer and the defendant gas companies were both sophisticated and a large in-house insurance department, processes dozens of claims in house monthly, self-insures for large amounts, and has numerous lawyers and brokers, is sophisticated in insurance coverage matters and thus has sufficient knowledge and bargaining power to craft an agreement to its benefit and had no argument against the policy it accepted. Everyone was unhappy with the result.
(c) 2025 Barry Zalma & ClaimSchool, Inc.
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Fraud Perpetrators Will Have Judgment Entered in Favor of Insurer They Defrauded
Post 5155
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Allstate Effectively Proactive Against Insurance Fraud
Plaintiffs Allstate Insurance Company and other Allstate companies (collectively, “Plaintiffs”) sued seeking redress for losses incurred due to an alleged insurance fraud scheme. Plaintiffs alleged that Defendants Toshner, Lacey Davies, Michael Trinh, Roadside Response, LLC, and Responsible Billing, LLC’s (collectively, “Defendants”) submitted false reimbursement claims for hazardous material cleanups that were never actually performed, were unnecessary, or did not involve an Allstate insured.
In Allstate Insurance Company, et al. v. Daniel Toshner, et al., No. 1:24-CV-27-RP, United States District Court, W.D. Texas, Austin Division (July 9, 2025) Allstate moved for default to be entered against the defendants.
...
When Plaintiff Gives Up Court Must Grant Summary Judgment
Post 5154
It is Contumacious to Sue an Insurer if You are Not Insured
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Defendant American National filed a motion for summary judgment because Plaintiff is not a named or third-party beneficiary of the Policy. Defendant contends that because Plaintiff is not covered by the Policy, Plaintiff cannot prove that Defendant breached the Policy or demonstrated bad faith under La. R.S. 22:1973 and 22:1892. In support of this contention, Defendant argued that the Policy only covers the “Named Insured/Mortgagee” of the property, Magee Holdings, LLC, and that the Policy does not name Plaintiff as an insured or a third-party beneficiary.
In Hannah Guillotte v. American National Property And Casualty Company, Civil Action No. 23-00931-BAJ-RLB, United States District Court, M.D. Louisiana (July 16, 2025) Plaintiff, the ...
When Plaintiff Gives Up Court Must Grant Summary Judgment
Post 5154
It is Contumacious to Sue an Insurer if You are Not Insured
See the full video at https://lnkd.in/ggmMWkcN and at https://lnkd.in/gJXMDYxG, and at https://zalma.com/blog plus more than 5100 posts.
Defendant American National filed a motion for summary judgment because Plaintiff is not a named or third-party beneficiary of the Policy. Defendant contends that because Plaintiff is not covered by the Policy, Plaintiff cannot prove that Defendant breached the Policy or demonstrated bad faith under La. R.S. 22:1973 and 22:1892. In support of this contention, Defendant argued that the Policy only covers the “Named Insured/Mortgagee” of the property, Magee Holdings, LLC, and that the Policy does not name Plaintiff as an insured or a third-party beneficiary.
In Hannah Guillotte v. American National Property And Casualty Company, Civil Action No. 23-00931-BAJ-RLB, United States District Court, M.D. Louisiana (July 16, 2025) Plaintiff, the ...
Rulings on Motions Reduced the Issues to be Presented at Trial
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CASE OVERVIEW
In Richard Bernier v. State Farm Mutual Automobile Insurance Company, No. 4:24-cv-00002-GMS, USDC, D. Alaska (May 28, 2025) Richard Bernier made claim under the underinsured motorist (UIM) coverage provided in his State Farm policy, was not satisfied with State Farm's offer and sued. Both parties tried to win by filing motions for summary judgment.
FACTS
Bernier was involved in an auto accident on November 18, 2020, and sought the maximum available UIM coverage under his policy, which was $50,000. State Farm initially offered him $31,342.36, which did not include prejudgment interest or attorney fees.
Prior to trial Bernier had three remaining claims against State Farm:
1. negligent and reckless claims handling;
2. violation of covenant of good faith and fair dealing; and
3. award of punitive damages.
Both Bernier and State Farm dispositive motions before ...
ZIFL Volume 29, Issue 10
The Source for the Insurance Fraud Professional
See the full video at https://lnkd.in/gK_P4-BK and at https://lnkd.in/g2Q7BHBu, and at https://zalma.com/blog and at https://lnkd.in/gjyMWHff.
Zalma’s Insurance Fraud Letter (ZIFL) continues its 29th year of publication dedicated to those involved in reducing the effect of insurance fraud. ZIFL is published 24 times a year by ClaimSchool and is written by Barry Zalma. It is provided FREE to anyone who visits the site at http://zalma.com/zalmas-insurance-fraud-letter-2/ You can read the full issue of the May 15, 2025 issue at http://zalma.com/blog/wp-content/uploads/2025/05/ZIFL-05-15-2025.pdf
This issue contains the following articles about insurance fraud:
Health Care Fraud Trial Results in Murder for Hire of Witness
To Avoid Conviction for Insurance Fraud Defendants Murder Witness
In United States of America v. Louis Age, Jr.; Stanton Guillory; Louis Age, III; Ronald Wilson, Jr., No. 22-30656, United States Court of Appeals, Fifth Circuit (April 25, 2025) the Fifth Circuit dealt with the ...
Professional Health Care Services Exclusion Effective
Post 5073
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This opinion is the recommendation of a Magistrate Judge to the District Court Judge and involves Travelers Casualty Insurance Company and its duty to defend the New Mexico Bone and Joint Institute (NMBJI) and its physicians in a medical negligence lawsuit brought by Tervon Dorsey.
In Travelers Casualty Insurance Company Of America v. New Mexico Bone And Joint Institute, P.C.; American Foundation Of Lower Extremity Surgery And Research, Inc., a New Mexico Corporation; Riley Rampton, DPM; Loren K. Spencer, DPM; Tervon Dorsey, individually; Kimberly Dorsey, individually; and Kate Ferlic as Guardian Ad Litem for K.D. and J.D., minors, No. 2:24-cv-0027 MV/DLM, United States District Court, D. New Mexico (May 8, 2025) the Magistrate Judge Recommended:
Insurance Coverage Dispute:
Travelers issued a Commercial General Liability ...
