BatesCarey attorney Josh Boggioni successfully led his insurer client to prevail against its policyholder on their respective cross-motions for summary judgment in the Circuit Court of Cook County. 

The policyholder sued BatesCarey’s client, Lexington Insurance Co., and sought a declaratory judgment that, under a pollution liability policy issued by Lexington, the policyholder was entitled to a second $5 million limit of liability for costs incurred in the investigation and remediation of a Superfund site in Montana—previously a 50-year-old paper mill.

Earlier in the case, the policyholder moved for summary judgment on the basis that, if it was investigating two or more “pollution conditions” at the site, it was entitled to two $5 million limits of liability. Josh successfully argued that the policy directly tied the number of available liability limits to the number of incidents—rather than the number of pollution conditions—and it defined “each incident” as the “same, related, or continuous pollution condition.” 

The policyholder filed an amended complaint and again moved for summary judgment based on the number of incidents because the pollution releases happened on different parts of the site and at different times.

In response, Josh argued that all the historic pollution releases at the site being investigated and remediated by the policyholder are “related.”

Judge Cecilia Horan agreed, holding that “the evidence in the court record demonstrates that the pollution being investigated at the Montana site at issue is at least related,” and that the policyholder was not entitled to a second $5 million limit of liability because there was only one incident under the policy.