Commercial Real Estate

March 8, 2019

Pollution Exclusion Bars Insurance Coverage for Oil-Based Paint Fumes

Source: https://www.law.com, March 7, 2019
By: Steven A. Meyerowitz

July 27, 2018

Toxins found in Upper Dublin drinking water; EPA holds forum to address concerns

Source: https://6abc.com, July 26, 2018
By: Vernon Odum

The tap water in Upper Dublin Township is widely believed by local residents to be dangerously contaminated by firefighting agents from military bases in this area of Montgomery County.

The acronym for the contaminating chemical in question is PFAS, which stands for Per- and Polyfluoroalkyl Substances.

According to the EPA’s website, the chemicals in PFAS are “very persistent in the environment and in the human body,” meaning they accumulate and stay in the body for a long period of time.

“This a Frankenstein’s monster kind of chemical,” said Upper Dublin Resident Mark Cuker. “It doesn’t break down when you drink it. It stays in your body and causes adverse health effects.”…

July 12, 2018

Toxic soil claims stall San Francisco shipyard development

Dive Brief:

  • Kofi Bonner, co-chief operating officer of Five Point Holdings, developer of the Hunters Point Shipyard/Candlestick Point project on and around the site of a former U.S. Navy shipyard in San Francisco, told the San Francisco Chronicle that the project will be delayed for years due to uncertainty around potentially radioactive soil that is scaring off investors and potential homebuyers.
  • Developers still aim to build more than 12,000 homes, 300 acres of parks, offices, schools and retail developments on the site, but many of those plans were stymied after claims that soil tests and cleanup records completed for the property were falsified. Two former employees of Tetra Tech, which was hired to perform the environmental work under a $250 million contract, pleaded guilty to fabricating soil-related documentation and were sentenced to prison. The Navy, which still has possession of the Hunters Point property, with the exception of one section, Parcel A — which was supposedly never exposed to the Navy’s radiological operations at the shipyard — will not release the land to the city or developers until the soil gets the all-clear through retesting. Officials said they will start testing Parcel A as well.
  • Lennar has built approximately 450 homes on Parcel A, where residential construction continues. Bonner said the company will focus on the Candlestick Point portion of the development, where site and utility work is currently underway without the shadow of potentially toxic soil. Approximately 7,200 residential units, 300,000 square feet of commercial development and a 200-room hotel have been approved for the site, according to Bisnow, but the company in April scuttled plans for a 635,000-square-foot shopping mall, citing a downturn in the brick-and-mortar retail market.
November 16, 2017

7 cases of Legionnaires’ disease tied to Las Vegas’ Rio hotel

Source: https://www.reviewjournal.com, November 15, 2017
By: Jessie Bekker

The exterior of the Rio hotel-casino seen on Saturday, June 10, 2017 in Las Vegas. (Rio Lacanlale/Las Vegas review-Journal)

The exterior of the Rio hotel-casino seen on Saturday, June 10, 2017 in Las Vegas. (Rio Lacanlale/Las Vegas review-Journal)

Five months after an outbreak of Legionnaires’ disease was reported at the Rio, the number of confirmed cases of the pneumonia-like bacterial illness among guests has risen to seven, with 29 more cases suspected, the Southern Nevada Health District said Tuesday.

Meanwhile, cleaning and testing of the hotel’s water system is continuing to ensure the disease has been eradicated.

That’s a normal timeline for a Legionnaires’ outbreak investigation, health experts say.

“In a situation like this, part of the process of these investigations on an environmental aspect is continued testing and monitoring,” said Robert Cole, the health district’s senior environmental health specialist.…

November 13, 2017

Disneyland shuts cooling towers after Legionnaires’ cases

Read here about Disneyland shutting down cooling towers after a dozen cases of Legionnaires were discovered after most of the patients had visited the park.…

September 25, 2017

NYC man dies of Legionnaires’ disease, 1 other sickened

Source: http://www.foxnews.com, September 21, 2017

A Queens resident is dead and another was sickened after they both contracted Legionnaires’ disease within a two-month period, prompting New York City health officials to investigate their apartment building’s plumbing.

The other residents of Park Towers, located on Queens Boulevard in Forest Hills, have been notified of the ongoing investigation.

“The Health Department is working with the building management to test the building’s hot water plumbing system,” a New York City Department of Health and Mental Hygiene spokesman said, according to NBC New York. “The building does not have a cooling tower. While the risk of infection to tenants is very low, as part of our protocol, the Department will notify residents about the investigation and next steps.”

While authorities did not identify either victim, they said the fatality involved an elderly resident.

“It makes my stomach sick,” Denise Innes, a building resident, told NBC New York. “I feel like I don’t know, I’m nervous now to use the water.”

In 2015, there were multiple clusters of Legionnaires’ disease in the Bronx. Twelve people died in the largest one, which was in the South Bronx.

Symptoms of Legionnaires’ can mimic the flu and present as cough, shortness of breath, fever, muscle aches and headaches. Symptoms typically begin two to 10 days after exposure, and could progress to lung failure or even death without treatment. According to the Centers for Disease Control and Prevention (CDC), about one out of every 10 Legionnaires’ patients will die due to complications form their illness.…

August 30, 2017

Lead-Based Paint Is a “Pollutant” within CGL Pollution Exclusion

Source: http://www.constructionrisk.com, August 2017
By: Kent Holland

Where lead-based paint was ingested by a tenant’s child, the tenant sued her landlord for injuries allegedly sustained by the child. The landlord tendered the claim to its commercial general liability (CGL) insurer who, instead of defending the case, filed a declaratory judgment action seeking a determination that the pollution exclusion of the CGL policy barred coverage for the alleged injuries. The Owner held that, although not specifically listed in the pollution definition as a “pollutant,” lead-based paint is, in fact, a “pollutant” within the meaning of the policy. The policy’s pollution exclusion was, therefore, applicable, and the insurer had no duty to defend and indemnify the landlord. See Georgia Farm Bureau Mut. Ins. Co. v. Smith, 298 Ga. 716, 784 S.E.2d 422 (2016).

The terms of the CGL policy required the insurer “to pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’” … “only if: (1) the ‘bodily injury’ or ‘property damage’ is caused by an ‘occurrence’ that takes place ….” An occurrence is defined as “an accident.” Coverage was subject to exclusions, including the pollution exclusion, which provided that the insurance does not apply to “(1) ‘[b]odily injury’ or ‘property damage’ arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants’: (a) [a]t or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to, any insured.”…

April 5, 2017

Neighbor of Alabama Waffle House Sues Over Grease, Sewage Seepage

Read here about a lawsuit filed over grease and sewage that seeped onto the neighboring property of an Alabama restaurant.…

April 5, 2017

Carbon Monoxide Leak in Michigan Hotel Kills Child, Sickens Others

Read here about a carbon monoxide lead at a hotel in Michigan that killed one and sickened others.…

January 18, 2017

Prior Property Owner Fails to Escape New Jersey Environmental Suit Because of Ambiguity in the Purchase and Sales Agreement of a Contaminated Property

Source: http://www.lexology.com, December 21, 2016
By: James M. McClammer, Manko Gold Katcher & Fox

Last week, the U.S. District Court for the District of New Jersey denied Alcoa Domestic LLC’s request that the court dismiss claims against it regarding a previously owned site, finding that Alcoa may be in breach of the Purchase and Sales Agreement for the site and thus still liable for contamination caused by the removal of materials from the site. The case, Borough of Edgewater v. Waterside Construction, LLC et al., Civil Action No. 14-5060 (D.N.J. December 14, 2016), concerns the Borough of Edgewater’s endeavor to remediate contamination at Veteran’s Field in Edgewater, New Jersey in 2012. A New Jersey contractor, Defendant Waterside Construction, LLC (and several other interrelated companies, collectively, “Waterside”), was awarded the contract for the remediation, which required Waterside to import clean stone to be used as fill in certain areas of the Veteran’s Field site. Subsequent inspections revealed that the fill was contaminated, and Waterside admitted that the fill material originated from the former Alcoa Site, which is contaminated.

The Borough filed suit against Waterside and Alcoa, as well as the current owner and developer of the Alcoa Site, North River Mews Associates, LLC (“North River”) and River Road Improvement Phase II, Inc. (“RRIP”), seeking remediation costs under the Comprehensive Environmental Response, Compensation, and Liability Act, the New Jersey Spill Act, and common law. North River had purchased the property from Alcoa in 1997 and RRIP was part of a local government redevelopment plan to revitalize the area, including the Alcoa Site. North River, RRIP, and Waterside asserted various cross-claims against Alcoa for contribution and indemnification.…