If you have a Superfund cleanup obligation, you may want to collect on insurance (if you have any) and also to seek contribution from others responsible for the Site.  What happens to the contribution claim when you collect on the insurance?  In most Superfund matters, the parties have simply ignored insurance recoveries.  However, in those few cases where the question has been raised in litigation, the courts have agreed that the collateral source rule — the rule that insurance should be ignored in determining the amount of a tort recovery — does not apply to a contribution claim under the Comprehensive Environmental, Response, Compensation and Liability Act.  But from there confusion sets in.  Is there no set off, an equitable consideration of insurance recoveries in allocating costs, a mechanical dollar-for-dollar set off, or something else?  That is the topic of my column this month in the Pennsylvania Law Weekly.

Read Insurance Recoveries and Superfund Contribution Claims, 37 Pa. L. Weekly 220 (Mar. 11, 2014), by clicking here.

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Photo of David Mandelbaum David Mandelbaum

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and…

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and Oil and Gas Law in rotation at the Temple University Beasley School of Law as well as an environmental litigation course at Suffolk (Boston) Law School.

Since United States v. Atlas Minerals, the first multi-generator Superfund contribution case to go to trial in 1993, Mr. Mandelbaum has been engaged in matters involving allocation of costs among responsible parties, especially under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  He has tried large cases and resolved others as lead counsel.  He has written, spoken, and taught extensively on the subject.  More recently he also has been engaged to assist lead counsel from this firm and others:

  • to develop cost allocation methodologies;
  • to craft expert testimony in support of a favored methodology (given a definition of “fairness,” why one methodology better tracks it than another);
  • to develop efficient case management approaches; and to assist private allocation as part of the neutral team.

Concentrations

  • Air, water and waste regulation
  • Superfund and contamination
  • Climate change
  • Oil and gas development
  • Water rights