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Toxic Torts and Environmental CommitteeCommittee NewsNews Fall 2011 / WinterFall 22012009 Toxic TInsuranceorts and CoverageEnvironm ental LitigationLaw Co Committeemmittee CARBON NANOTUBES: THE NEXT ASBESTOS? Fionna Mowat, Exponent, fmowat@CANexpone nANt.com INSURER DEFEND A BAD FAITH CLAIM Joyce Tsuji, Exponent, [email protected] INFORMATION IT WAS UNAWARE OF Carbon nanotubes (CNTs) hold WHENasbesto sDENYINGfibers—disc uCOVERAGE?ssions of Fir s t reported in 19913, CNTs promise for many beneficial By:p Alexarall Potenteels be tandwe eTylern th Gerkingese tw1 o epitomize the emerging field of applications. However, there have substances are natural. Thus, given nanotechnology, defined by some been concerns and calls for a tTherehe le gareac ytimesof asbeInsto thiss-re article,lated wea sreviewthe “ apossiblebility t oanswersmeasu rtoe, thesesee, moratorium raised over “mounting wheninj urany andinsurerthe t houquestionssands of fromcases the mperspectiveanipulate ,ofa nbothd m insurersanufac tuandre evidence” that CNT may be the declineslitiga tedcoverageeach yea r, policyholdersconsideration inof botht hfirst-ings andus third-partyually bet wcontexts.een 1 anWithd “inn eeitherw as bae sfirst-tos,” 1oro third-partyr at leas tcontextposs iand,ble i mlater,plic aat ionthes o lawf th enotus eentirelyof 1settled,00 nan oinsurersmeters.” and4 CN policyholdersTs are a type dcourteserv determinesing of “spe cthatial tthisoxic declinationological wasCNT ins ierrorn res eandarc h amaynd i nreachcons differentumer conclusions.of carbon - Asba stheed departureengine epointred athattten coveragetion” due existed.to prior eOnxp esomerienc eoccasionss prod uundercts is theseprude ntfor. our analysis, we nbrieflyanopart ireviewcle ge ntheera lrequirementsly formed b yof circumstances,2 the policyholder asserts that the insurer the covenant of good faith and fair dealing implied in with asbestos. The shape and size Continued on page 18 odidf s onotme conductagglom ear acompleteted CNT sinvestigationare prior to the every insurance policy. declination. Continued on page 11 similar to asbestos—the most IN THIS ISSUE “desInterestingirable.” An dquestionsbecause CareNT spresentedfor when, during sdiscoverytructural inu tithelity ensuingare lo npolicyholderg and Cversusarbon insurerNanotu bes: The Next AINsbes tTHISos . .ISSUE:. 1 tlitigation,hin—cha rtheact einsurerristics discoversthought newto factsEd ithattor’ stendMe stosa ge. 3 isupportmpart thein cdenialrease ofd coverage:potency to Can an Insurer Defend a Bad Faith Claim Tatera v. FMC CorpUsingoratio nInformation: When Is A PItr oWasduct UnawareNo A Prod ofuc Whent?. 3 • Can the insurer rely on these new facts that tend 1 Denying Coverage? . 1 Mitoller ,showG. 20 0no8. M coverageounting evide nince tharguingat carbon thatM itsex idenialco’s N wasatio nal Wastes Management Program. 4 nanotubes may be the new asbestos. Friends of the Editors Column . 4 EarthreasonableAustralia. Availa bandle at h inttp: /good/nano.fo efaith?.org.au. Environmental Risk During Restructuring And Bankruptcy . 5 2 The Royal Society and Royal Academy of Anti-Concurrent Cause Clauses: Are They Engin•e eCanring (RtheseS/RAE ).new2004 .factsNano scbeien ceconsideredand Up asco mparting ofTT aE L Programs And Meetings . 6 nanotegenuinechnologies. Rdisputeoyal Societ ydoctrineand Royal A ssanalysis,ociation which provides Enforceable? . 6 of Engineers. London: The Royal Society. Available at Limitations Of Toxicogenomic Studies To Assess Toxic Exposures http://thatwww. rocertainyalsoc.ac. ukdisputed/. issues of coverage are per se ECHOES MYRON: The Importance of 3 Iijireasonable,ma, S. 1991. H eand,lical m iifcro tso,ubul edoess of gr athisphitic still Aholdnd Itruenju rwheny Fro m BNewenze nJerseye. Supreme. Court’s. .Ruling. .on. 7 carbonthe. Na tdisputeure (Londo ninvolves) 354:56–58. a third-party insurance policy? 4 National Science and Technology Council (NSTC). Burlington NortherFee-Shiftingn: The Requis i.te I.n t.e nt. F.or .A r.r an.g e.r L.i a.b il.i . t y.8 2007. The National Nanotechnology Initiative. Strategic Under Cercla . 8 Plan. Washington DC: NSTC, Committee on 2012 TIPS Calendar . 22 1 Collectively assisted by Kimberly Jackanich. Technology, Subcommittee on Nanoscale Science, 2009-2010 TIPS Calendar . 20 Engineering, and Technology. December. Available at http://www.nano.gov/ NNI_Strategic_Plan_2004.pdf. Uniting Plaintiff, Defense, Insurance, and Corporate Counsel to Uniting Plaintiff, Defense, Insurance, and Corporate Counsel to Advance the Civil Justice System Advance the Civil Justice System Insurance Coverage Litigation Committee Newsletter Fall 2011/Winter 2012 Chair Rabeh Soofi John M Bjorkman Janet R Davis Ginny L Peterson 950 N. Kings Road, Suite 123 Larson King LLP Meckler Bulger et al Kightlinger & Gray LLP West Hollywood, CA 90069 30 7th St E, Ste 2800 123 N Wacker Dr, Ste 1800 151 N Delaware St, Ste 600 (310) 497-7483 Saint Paul, MN 55101-4904 Chicago, IL 60606-1770 Indianapolis, IN 46204-2713 [email protected] (651) 312-6511 (312) 474-7947 (317) 968-8182 Fax: (651) 312-6618 Fax: (312) 474-7898 Fax: (317) 636-5917 Website Vice-Chairs [email protected] [email protected] [email protected] Mark J Holzhauer American Family Insurance William H Black Jr Laurie E Dugoniths 6750 Via Austi Pkwy, Ste 300 Post & Schell PC The Johnson Firm LLC Chair-Elect Las Vegas, NV 89119-3562 1600 John F Kennedy Blvd, Fl 13 3060 Peachtree Rd NW, Ste 1050 Lyndon F Bittle (702) 733-5820 Philadelphia, PA 19103-2817 Atlanta, GA 30305-2255 Carrington Coleman Fax: (877) 888-1396 (215) 587-1109 (404) 442-8834 901 Main St, Ste 5500 [email protected] Fax: (215) 587-1444 Fax: (404) 442-8835 Dallas, TX 75202-3767 [email protected] [email protected] (214) 855-3096 Dena Denooyer Stroh Fax: (214) 758-3796 Gruber Hurst et al James R Bussian Madeleine Fischer 1445 Ross Ave, 2500 Fountain Pl [email protected] Maynard Cooper & Gale PC Jones Walker et al Dallas, TX 75202 1901 6th Ave N, 2400 Regions 201 Saint Charles Ave, Fl 51 (214) 855-6815 Harbert Plaza New Orleans, LA 70170-1000 Council Fax: (214) 855-6808 Birmingham, AL 35203-2618 (504) 582-8208 [email protected] Representative (205) 254-1074 Fax: (504) 589-8208 Michael W Drumke Fax: (205) 254-1999 [email protected] HeplerBroom LLC Vice-Chairs [email protected] 150 N Wacker Dr, Ste 3100 David H Anderson Arthur S Garrett III Hoke LLC Chicago, IL 60606-1659 Tracy A Campbell Keller and Heckman LLP 117 N Jefferson St, Ste 100S (312) 205-7717 Schiff Hardin LLP 1001 G St NW, Ste 500W Chicago, IL 60661-2313 Fax: (312) 230-9201 233 S Wacker Dr, Ste 6600 Washington, DC 20001-4564 (312) 575-8562 [email protected] Chicago, IL 60606-6307 (202) 434-4148 Fax: (312) 575-8599 (312) 258-5602 Fax: (202) 434-4646 [email protected] Last Retiring Chair Fax: (312) 258-5600 [email protected] Judith F Goodman Roberta Draper Anderson [email protected] Goodman & Jacobs LLP K&L Gates Center Gary L Gassman 75 Broad St, Rm 3001 210 6th Ave Michael J Carrigan Meckler Bulger et al New York, NY 10004-2425 Pittsburgh, PA 15222-2613 Holland & Hart LLP 123 N Wacker Dr, Ste 1800 (212) 385-1191 (412) 355-6222 555 17th St, Ste 3200 Chicago, IL 60606-1770 Fax: (212) 385-1770 Fax: (412) 355-6501 Denver, CO 80202-3921 (312) 474-7994 [email protected] [email protected] (303) 295-8384 Fax: (312) 474-7898 Fax: 303 295-8261 [email protected] Law Student Vice-Chair Brandi L Bennett [email protected] Ice Miller LLP David A Gauntlett Pamela Grimes 1 American Sq, Ste 2900 Joan M Cotkin Gauntlett & Assoc PO Box 8212 Indianapolis, IN 46282-0015 Nossaman LLP 18400 Von Karman Ave, Ste 300 Atlanta, GA 31106-0212 (317) 236-2221 777 S Figueroa St, Ste 300 Irvine, CA 92612-0505 (770) 314-4757 Fax: (317) 592-5473 Los Angeles, CA 90017-5801 (949) 553-1010 [email protected] [email protected] (213) 612-7800 Fax: (949) 553-2050 Madelaine Berg Fax: (213) 612-7801 [email protected] Membership Vice-Chair Madelaine R Berg Esq LLC [email protected] Jose Ramirez 9040 N Flying Butte Gregory R Giometti Holland & Hart LLP Fountain Hills, AZ 85268-6377 James W Creenan Gregory Giometti & Assoc 6380 S Fiddlers Green Cir, Ste 500 (480) 419-0689 Creenan & Baczkowski PC 50 S Steele St, Ste 480 Greenwood Village, CO 80111-5048 [email protected] 3907 Old William Penn Hwy, Ste 304 Denver, CO 80209-2836 (303) 290-1605 Murrysville, PA 15668-1834 (303) 333-1957 Fax: (303) 383-5643 Jill B Berkeley (724) 733-8832 Fax: (303) 377-3460 [email protected] Neal Gerber & Eisenberg Fax: (724) 733-8834 [email protected] 2 N La Salle St, Ste 1700 [email protected] Chicago, IL 60602-4000 Dawn M Gonzalez Newsletter Vice-Chairs (312) 269-8024 Brian Margolies Michael J Daly Baugh Dalton Carlson & Ryan LLC Fax: (312) 980-0836 Pierce Atwood LLP 55 W Monroe St, Ste 600 Traub Lieberman Straus [email protected] 10 Weybosset St, Fl 4 Chicago, IL 60603-5091 & Shrewsberry LLP Providence, RI 02903-2818 (312) 759-1400 7 Skyline Dr Sheryl Bey (401) 588-5113 Fax: (312) 759-0402 Hawthorne, NY 10532-2185 Baker Donelson et al [email protected] [email protected] (914) 347-2600 4268 I55 N Meadowbrook Ofc Pk Fax: (914) 347-8898 Jackson, MS 39236-4167 [email protected] (601) 351-2490 Fax: (601) 592-7490 [email protected] 2 2 Insurance Coverage Litigation Committee Newsletter Fall 2011/Winter 2012 Vice-Chairs (cont.) Sandra R McCandless John Edwards Osborne David Rosenbaum Stephen P Groves Sr SNR Denton Goldberg & Osborne Fasken
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