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Environmental Law News Feed

Developments in Environmental, Agricultural, Energy, Mining and Natural Resources Law in Wisconsin


The State Of Wisconsin Moves Some State Assets Closer To The Marketplace

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In June 2013, the state legislature approved the Governor’s Executive Budget and gave the Wisconsin Department of Administration (“DOA”) the authority to sell a wide range of state assets.  This law vastly expanded DOA’s authority to sell property owned by the state.  Until then, the authority of state agencies was limited to the sale of “surplus” properties.  The asset sale legislation allows the state to sell assets that remain vital to the state’s operations, like state heating and cooling plants, that are necessary to provide heat and cooling to a host of state buildings including, university dormitories, state and municipal office buildings and prisons.

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How Absolute is the “Absolute Pollution Exclusion?”

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Most comprehensive general liability insurance policies include an “absolute” (or “total”) pollution exclusion.  Courts across the country have struggled with the issue of just how “absolute” that exclusion really is.  The Nevada Supreme Court is the latest court to grapple with the issue in a May 29, 2014 decision.  Century Surety Co. v. Casino West, Inc., 2014 WL 2396085 (Nev. 2014).  In that case, four people died from carbon monoxide poisoning while sleeping in a room above a pool heater in the Casino West Motel.  Casino West sought coverage from its liability insurer, Century Surety Company, for the death claims but Century denied coverage based upon the absolute pollution exclusion in its policy.  That exclusion bars coverage for bodily injury or property damage “arising out of the actual, alleged or threatened discharge, disbursal, seepage, migration, release or escape of ‘pollutants’.”  The policy defined a “pollutant” as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, and waste.”  The Nevada Supreme Court observed that “it is reasonable to categorize carbon monoxide as a pollutant because it is a gaseous element that contaminates the air, making it dangerous and sometimes deadly to breath.”  However, Casino West argued that the exclusion only applies to “traditional environmental pollution,” and the Court also found that interpretation to be reasonable.  The pollution exclusion was thus ambiguous and the Court construed it in favor of coverage.  The Court held that Casino West had coverage notwithstanding the absolute pollution exclusion.

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Wisconsin Supreme Court Clarifies an Employer’s Liability for the Negligent Acts of an Independent Contractor

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In a decision rendered last week, the Wisconsin Supreme Court affirmed a Wisconsin Court of Appeals decision holding that a person who hired an independent contractor to spray herbicide on his property could be held liable for damages sustained by a neighbor when the contractor’s negligent application of the herbicide killed trees on the neighbor’s property.  See Brandenburg v. Briarwood Forestry Services, LLC, 2014 WI 37 (available here).  As discussed in a blog posthere last summer (that reported on the Court of Appeals’ decision), the case illustrates an exception to the general rule that a party who retains an independent contractor to provide services is not liable for the contractor’s negligent acts.  The Supreme Court’s decision is an important reminder that property owners must exercise reasonable care when they retain contractors to provide services that could cause environmental damage to third parties.

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