Melicent B. Thompson on COVID-19 Coverage
Abstract
COVID-19 indisputably has taken an enormous economic toll. Governmental shutdown orders early in the pandemic and ongoing restrictions on business’ operations have resulted in a flood of claims for insurance coverage for business income losses attributable to those orders and restrictions. This article reviews the litigation and legislative developments directed at attempting to find insurance coverage for such losses and the reasons why those efforts have been unsuccessful for the most part.
Author
Melicent B. Thompson (mthompson@gllawgroup.com) is a Partner with the law firm Gfeller Laurie, LLP, in West Hartford, Connecticut. She thanks her fellow Gfeller Laurie, LLP attorneys who contributed to this article. Melicent has close to 25 years of experience in litigation and corporate counseling. She actively practices in Connecticut and Georgia courts in insurance coverage, business disputes, professional liability claims, defense of educational and financial institutions and general liability. Her insurance coverage practice encompasses all areas of first and third party claims and related litigation services, including declaratory judgment actions, defense of bad faith claims and reinsurance matters. Melicent has substantial appellate court experience, having briefed and argued appeals before the Second Circuit Court of Appeals and the Connecticut Supreme and Appellate Courts. Her pro bono work includes serving as General Counsel to the Board of Directors of Gifts of Love, a charity providing basic needs to the working poor, based in Avon, Connecticut. She also serves as a member of the Advisory Council of Bay Path University (Longmeadow, Massachusetts).
About
The Journal on Emerging Issues in Litigation is a co-production of HB, Fastcase, and Law Street Media. You can also hear the complementary (and complimentary) Emerging Litigation Podcast wherever podcasts appear. For questions, contact Tom Hagy, Editor in Chief, at Editor@LitigationConferences.com.
Contaminated Sites and Long-Term Stewardship: Meeting Obligations for Residual Contamination
Contaminated Sites and Long-Term Stewardship: Meeting Obligations for Residual Contamination Best Practices for Counsel in Implementing, Maintaining, and Enforcing LTS Potential LTS obligations often flow from residual contamination. These obligations frequently center on the vapor intrusion (VI) pathway. VI is the migration of vapor-forming chemicals from any subsurface source into an overlying building. This evolving inhalation "pathway" presents significant challenges and complicates environmental remediation for Brownfield development projects, real estate transactions, and management of commercial/industrial real estate portfolios. The U.S. EPA's national Institutional Control (IC) Policy provides important guidance for investigation and remediation, and ultimately closing, contaminated sites. The IC Policy outlines an approach to help meet potential LTS obligations for managing residual risk and achieve site closure. LTS is an increasing part of cleanup programs to get contaminated properties ready for beneficial reuse. Ongoing monitoring and maintenance (especially for the VI pathway) are needed to ensure continued protection of human health and the environment. Environmental counsel to companies must understand the legal risks from the contaminated sites, when and how to implement LTS, what needs to be done to ensure LTS obligations are met, and the new LTS tools and technologies available to tailor a site-specific approach. Listen as our panel of experts examines LTS and what that includes from a monitoring plan to reporting requirements. The panel will discuss the viability of remedies and management of ongoing and future risks at contaminated sites and change of ownership issues arising when contaminated property exchanges hands. The panel will offer best practices for implementing, maintaining, and enforcing an LTS plan. David R. Gillay Partner Barnes & Thornburg Kyle Hoylman CEO Protect Environmental Dr. Henry Schuver, Ph.D. Environmental Scientist U.S. EPA CLE On-Demand Webinar This Strafford production has been specially selected for HB audiences. What factors should counsel consider when determining which LTS tools are to be implemented? What steps can counsel recommend to ensure LTS measures are effective and meet current compliance requirements? What framework does the EPA guidance provide to ensure the requirements for implementing LTS are met? [...]
Managing Class Representative Discovery: Plaintiffs’ Strategies for Winning Certification
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Managing Class Representative Discovery: Plaintiffs’ Strategies for Winning Certification
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Insurance Coverage for Claims Alleging Breach of Preexisting Duty: Limitations on the Eaton Vance Rule
Insurance Coverage for Claims Alleging Breach of Preexisting Duty: Limitations on the Eaton Vance Rule Determining the Source of the Insureds Obligation to Pay an Underlying Claim Liability insurance covers, among other things, an insured’s legal obligation to pay damages to a third party arising out of a claim against the insured for breach of a duty owed to that third party. But what if the damages the insured becomes liable to pay – whether by settlement or court order after a judgment – constitute nothing more than amounts the insured already had a pre-existing contractual or statutory duty to pay, irrespective of whether any claim had been made alleging a breach? This latter category of damages is generally not covered by liability insurance because the insured’s obligation to pay does not result from the third-party “claim”; rather, it results from the pre-existing contractual or statutory obligation. The distinction between covered and non-covered damages for breach of a pre-existing duty is often difficult to see and even harder to explain coherently, for attorneys and judges alike. A significant body of confusing – and sometimes inaccurate, contradictory, and inartfully worded – case law has developed on these issues. Relying on these cases, it is now relatively common for insurers to look for every opportunity to disclaim indemnity coverage for any claim seeking damages based on an alleged breach of a duty imposed by contract or statute. As a result, the “Eaton Vance rule” has expanded beyond can be justified by the policy language and moral hazard concerns from which the rule was born. Strategies exist for protecting the policyholder's right to coverage and the insurer's concerns that it is being cast as a guarantor of performance. Getting and providing the coverage that both parties contracted for requires a more careful approach than has been utilized heretofore. Listen as the panel of insurer and policyholder counsel discusses the complex issues surrounding insurance coverage for damages related to breach of contract claims, the “Eaton Vance rule,” and how to sort through imprecise and confusing language in the [...]
Environmental Litigation: Piercing the Corporate Veil, Alter Ego, and Successor Liability
Environmental Litigation Piercing the Corporate Veil, Alter Ego, and Successor Liability Environmental investigations and remediation expenses are costly. Private litigants and state and federal governments often seek viable "deep pocket" entities or high net worth individuals to pay for the cleanup costs allegedly attributable to an otherwise defunct or underfunded company's historical operations that caused the environmental contamination. In the typical scenario, the separate entity (parent company, shareholder, or successor in interest) does not own, lease, or operate the facility at issue, nor did it directly release a hazardous substance into the environment. And often, the former company was dissolved years ago and incorporated in an entirely separate state. Thus, the parent company, shareholder, or successor-in-interest is blindsided by the claims letter, lawsuit, or enforcement order--all of which require a strategic and accurate response. This type of indirect liability can be a real threat in any environmental litigation if pleaded correctly and supported by facts, and not met by a strong, well thought out and supported defense. As such, environmental litigators must be adept at using or defending against these theories of liability before they arise. Listen as our panel provides environmental litigators with an analysis of legal theories of alter ego and successor liability as they relate to environmental liabilities at cleanup sites and provides guidance on factors to consider and best practices for defending against such allegations. Daniel Riesel Principal Sive Paget & Riesel driesel@sprlaw.com Dane Warren Attorney Sive Paget & Riesel dwarren@sprlaw.com Take this CLE webinar on your own schedule. It's now on-demand! Issues to consider when faced with a litigant that seeks to pierce the veil of your corporate client or hold your client responsible for the actions of a predecessor. Factors courts consider when deciding whether to apply the alter ego and successor liability theories. Key considerations and best practices for corporations and related entities defending alter ego and successor liability claims. Overview of liability of corporate parents, shareholders, and successors under common law for environmental derelictions Piercing the corporate veil [...]
The In Pari Delicto Defense to Bankruptcy and Other Claims Against Directors, Officers, and Third Parties
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