1 No. 39
Consolidated Edison Company of New York, Inc.,
Appellant,
v.
Allstate Insurance Company, et al.,
Respondents. (And a Third-Party Action.)
_________________________________________________________________
Consolidated Edison Company of New York, Inc.,
Appellant,
v.
Certain Underwriters of Lloyd's, et al.,
Respondents, Allstate Insurance Company, et al.,
Defendants. (And a Third-Party Action.)
_________________________________________________________________
2002 NY Int. 51
May 2, 2002
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
David L. Elkind, for appellant.
Robert Lewin, for respondent Travelers Indemnity.
John G. McAndrews, for respondents London Market Insurers.
Thomas R. Newman, for respondent St. Paul Fire & Marine.
Richard E. Lerner, for respondent Home Insurance.
Robert F. Walsh, for respondents New England & Twin City.
Public Service Commission; United Policyholders; Insurance
Environmental Litigation Association, amici curiæ.
_________________________________________________________________
KAYE
, CHIEF JUDGE:
Central to this appeal by an insured against its insurers are two
important law questions: first, whether the insured (or the insurers)
should have the burden of proving that the damage was (or was not) the
result of an "accident" or "occurrence" within the meaning of the
policies, and second, how any liability should be allocated. This case
presents something of a time capsule in that nineteenth century
technology polluting twentieth century properties will have
significant twenty-first century financial ramifications. For
approximately 60 years -- from 1873 to 1933 -- Consolidated Edison's
corporate predecessors owned and operated a manufactured gas plant in
SNIPPETS:
Consolidated Edison Company of New York, Inc., Appellant, v. Allstate Insurance Company, et
Robert Lewin, for respondent Travelers Indemnity.
for respondents New England & Twin City.
Central to this appeal by an insured against its insurers are two important law questions:
In 1995, Anchor notified Con Edison that, during an investigation it was conducting pursuant
Defendant Travelers Indemnity Company, which provided coverage for liability in excess of $20
Travelers argued that where there is both continuous, progressive property damage and
Applying a pro rata allocation to damage estimates most favorable to Con Edison, Travelers
Nineteen other defendants cross-moved to dismiss the complaint against them on the same
Supreme Court dismissed the action as against Travelers and 13 other defendant-insurers who
it is for the insured to establish coverage and for the insurer to prove that an exclusion in
Co.,, 89 NY2d 621, 634;
"Occurrence" is defined as "an event, or continuous or repeated exposure to conditions, which
the United States Court of Appeals for the Second Circuit reached that conclusion in
Especially in the environmental pollution context, such a result "provides the insured with
In addition, it "appropriately places the burden of proof on the party having the better and
Opinion by Chief Judge Kaye.
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