Corporate Vision Issue 2 2019

CORPORATE VISION / Issue 2 2019 35 by 1980 to 1985 EIL policies). In addition, in 1995 and a few years thereafter, Keyspan could have purchased a broadly worded and loosely underwritten cleanup cost cap (CCC) policy that would have applied to investigation as well as remediation costs. It appears that supposedly unavailable environ- mental insurance was available to Keyspan twice. The second reason is that the unavailability rule cannot be applied in such contexts. While Century’s 2014 motion was pend- ing, Keyspan received an expert’s report which it did not submit with the motion. It subsequently did everything possible to suppress what must have been the content of the report, including engineer- ing an order which contradicted the court’s availability and burden of proof holdings. The result was a farcical trial which Keyspan won., and the appellate court faced with a “frozen record on appeal”; the trial record was not before it. So it crafted a satirical opinion that was strictly “on the law,” an attack, through ironic footnotes and asides, on an ab- surd allocation theory which was completely contrary to New York’s time on the risk proration formula. It was merely a declaration of the law with no mention of the trial or the facts, thus preventing Keyspan’s trial success from having any effect. The Court of Appeals affirmed, rejecting application of the unavailability rule for pro rata time on the risk allocation. This case is the best example of how the unavailability rule, outside the Stonewall con- text, acts as a disincentive to the purchase of insurance and man- agement of environmental risk. This example highlights the complexity of the environmental insurance space and why clients need to work with experts such as Susan and the team at EIA. Ultimately, EIA’s ongoing success will rest with Susan and her expert team working alongside even more clients to ensure that they remain compliant and ahead of emerging developments within the fast-paced environ- mental insurance space over the coming years. This will remain the ongoing focus for both Susan and EIA, as she leads the company to even greater success. Company: The Environmental Insurance Agency, Inc. Contact: Susan Neuman Website: Susan Neuman : An Expert in Environmental Coverage and Contracts Law