United States Second Circuit

Judgment against defendants, requiring indemnification of plaintiff for liability incurred as a result of environmental contamination at four sites near Niagara Falls, and order denying defendants' motion for judgment as a matter of law or a new trial is vacated as: 1) costs of remediation should be allocated over the period in which property damage occurred, as nearly as possible according to the amount of property damage that occurred in each policy period, rather than allocating costs equally over the years; 2) property damage includes the passive migration or spread of contaminants; 3) the district court must either reconsider the motion for judgment as a matter of law or conduct a new trial; and 4) defendant should be permitted to raise the defense of late notice.

Appellate Information

• Decided 11/07/2006
• Published 11/07/2006

Judges

• POOLER, Circuit Judge., Before: CARDAMONE, POOLER, HALL, Circuit Judges.

Court

• United States Second Circuit

Counsel

• For Appellees:
  
• John G. McAndrews, Mendes & Mount LLP, (Mary Ann D'Amato, George L. Maniatis, Matthew B. Anderson, Mendes & Mount LLP, William J. Baron, Hancock Rothert & Bunshoft LLP, on the briefs) New York, N.Y. for Defendants-Appellants., Mark G. Arnold, Husch & Eppenberger LLC, St. Louis, MO, for Plaintiff-Appellee.