Podium Mode

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Bartolus · Podium Mode

Acme Management v. The Insurer

24:31

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Judge Friendly · Q1

Counsel, walk me through exactly what written demand Acme Management received that specifically sought Clean-Up Costs — and when it received that demand relative to when notice was given to the insurer. What document, on its face, said ‘pay Clean-Up Costs’?

Team notes

Why might Judge Friendly ask this?

Judge Friendly tends to open by zeroing in on the concrete mechanics of how the Policy’s ‘Claim’ definition is triggered, demanding that counsel identify the specific written instrument rather than relying on inference. Here, the timing problem is acute — EPA certified clean-up complete in August 2011 and Acme didn’t notify the insurer until December 2011 — making the written-demand question the threshold issue that exposes the entire coverage theory.

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Bartolus · Podium Mode

Acme Management v. The Insurer

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Podium Mode

Acme Management v. The Insurer

Judge Hand · Judge Wisdom · Judge Friendly · You represent the appellant

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Counsel, why should the insurer pay for a defense it never had the chance to control?

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Bartolus · Podium Mode

Acme Management v. The Insurer

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Judge Hand62

Q1Counsel, what is the single best case you have for the proposition that federal enforcement guidance documents — not the policy language, not the underlying pleadings, but the guidance documents themselves — must be considered in an eight-corners analysis? Is it McGinnes, and if so, tell me exactly what McGinnes held and why it controls here rather than Gilbane.

Q2Help me understand the logical structure of your argument. You say the AOC was fully satisfied before the insurer even received notice, the AOC’s costs fell within Acme’s own deductible, and then three years later an Indictment issues that on its face seeks only a criminal conviction. How does combining those two premises — a completed clean-up and a criminal prosecution seeking no remedy — produce a covered Claim under this policy? Walk me through that step by step.

Q3If I accepted your reading that the parallel proceedings constitute a single Claim beginning with the AOC, what would any insurer actually do with a pollution policy when it receives notice three and a half months after the only clean-up demand has already been fully satisfied? Is there a workable rule here that insurers could actually implement?

Judge Wisdom63

Q1Counsel, Caterpillar v. Lewis seems to be a significant obstacle for your remand argument. Once Acme filed its Amended Complaint dropping the adjuster as a defendant, complete diversity existed at the time of judgment. Why doesn’t Caterpillar foreclose your ability to seek vacatur of the judgment on remand grounds?

Q2Even setting aside Caterpillar, your client voluntarily amended its complaint to drop the adjuster before the merits were litigated. Doesn’t that voluntary act by Acme itself cure the very jurisdictional defect you’re now complaining about on appeal?

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