Justia Zoning, Planning & Land Use Opinion Summaries

Articles Posted in Insurance Law
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The Mundens own ranching property in Bannock County, Idaho. They purchased 768 acres in 2012 and 660 acres in 2014 and purchased title insurance for the first purchase through Stewart and for the second purchase through Chicago Title. The property contains a gravel road. A 2019 ordinance amended a 2006 ordinance that closed specified snowmobile trails, including that gravel road, to motor vehicles except snowmobiles and snow-trail-grooming equipment during winter months. The 2019 ordinance deleted the December-to-April closure, giving the County Public Works Director the discretion to determine when to close specified snowmobile trails, and increased the maximum fine for violations. The Mundens sought an injunction. The county asserted that the road had been listed as a public road on county maps since 1963 and that the Mundens purchased their property expressly subject to easements and rights of way apparent or of record.The Mundens filed a federal complaint, seeking declaratory relief, indemnification, and damages. The district court granted the insurance companies summary judgment. The Ninth Circuit reversed as to Chicago Title, finding that the county road map is a “public record” within the meaning of its policy so that coverage applied. Stewart has no duty to indemnify or defend; its policy disclaims coverage for damages “aris[ing] by reason of . . . [r]ight, title and interest of the public in and to those portions of the above-described premises falling within the bounds of roads or highways.” View "Munden v. Stewart Title Guaranty Co." on Justia Law

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The Supreme Court reversed the decision of the court of appeals reversing the judgment of the circuit court striking two insurance conditions from a conditional use permit (CUP) Dane County issued to Enbridge Energy Company as unenforceable under 2015 Wisconsin Act 55, holding that because Enbridge carried the requisite insurance, Act 55 rendered Dane County's extra insurance conditions unenforceable.The two conditions at issue required Enbridge to procure additional insurance prior to Enbridge expanding its pipeline pump station. Dane County approved the CUP with these insurance conditions. Thereafter, the Wisconsin Legislature passed Act 55, which prohibits counties from requiring an interstate pipeline operator to obtain additional insurance when the pipeline operating company carries comprehensive general liability insurance with coverage for "sudden and accidental" pollution liability. Dane County issued the CUP with the invalid insurance conditions. The circuit court struck the two conditions from the CUP as unenforceable under Act 55. The court of appeals reversed on the ground that Enbridge failed to show it carried the requisite coverage triggering the statutory prohibition barring the County from imposing additional insurance procurement requirements. The Supreme Court reversed, holding that Enbridge carried the requisite insurance, and therefore, Dane County's extra insurance conditions were unenforceable. View "Enbridge Energy Co. v. Dane County" on Justia Law

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Third Site is a Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) site that was part of a larger area, under common ownership by the Bankerts, used for recycling industrial wastes. Cleanup initially focused on other sites, but in 1987 and 1992 consultants found concentrations of volatile organic compounds; Third Site was transferring pollutants to Finley Creek, which flows to Eagle Creek Reservoir, which supplies Indianapolis drinking water. The creek was realigned. In 1999, the EPA entered into an Administrative Order by Consent (AOC) with potentially responsible parties. Non-Premium Respondents agreed to undertake an Engineering Evaluation and Cost Analysis (EE/CA) of removal alternatives and to settle a trust to bankroll the EE/CA. Premium Respondents, allegedly de minimis contributors, were entitled to settle out with a one-time Trust contribution under 42 U.S.C. 9622(g). Non-Premium Respondents met their obligations. In 2002, the parties entered into a second AOC to perform work described by the Enforcement Action Memorandum: Non-Premium respondents had the same Trust obligations for removal efforts. The Bankerts are Non-Premium Respondents under both AOCs, but have not met their obligations. In 2008, the Trustees sued the Bankerts and their insurers, seeking cost recovery under CERCLA, 42 U.S.C. 9607(a), and Indiana law. One of the insurers argued that its successful litigation in connection with cleanup of the adjoining site precluded a finding of coverage. Entering summary judgment for the Bankerts, the district court construed the CERCLA claim as seeking contribution under 42 U.S.C. 9613(f), and barred by the statute of limitations, so that issues concerning the insurer were moot. The Seventh Circuit remanded reinstated claims under 42 U.S.C. 9607(a)(4)(B), to recover costs incurred under the 2002 AOC and against the insurer. On rehearing, the court clarified that a party responsible for contamination may obtain an immediately effective release from the EPA in a settlement, or it may obtain only a performance-dependent conditional covenant not to sue with an accompanying disclaimer of liability. Whether, and when, a given settlement “resolves” a party’s liability under 42 U.S.C. 9613(f)(3)(B) is case-specific and depends on its terms. In this case, the AOC did not provide for resolution upon entering into the agreement. View "Bernstein v. Bankert" on Justia Law

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The South Dakota Public Assurance Alliance (SDPAA), a local government risk pool, negotiated with Aurora County to provide what was essentially insurance coverage. After coverage was finalized, a local dairy farm sued the County over a pre-existing zoning dispute. The County was found liable for damages. SDPAA then sought a declaration that it did not have a duty to defend or indemnify, arguing, inter alia, that the County failed to disclose material facts relating to the claim. In a jury trial, the circuit court excluded as parol evidence the parties' pre-contract communications regarding coverage for zoning issues, including communications that could be interpreted as having disclosed the dairy farm zoning dispute. The jury found for SDPAA. The Supreme Court reversed and remanded for a new trial, holding that because the excluded coverage communications were not offered to alter or contradict any written terms of the agreement, their admission would not have violated the parol evidence rule.