Z.S. Pete Volaric

The court considered whether the removal of an underground storage tank by the plaintiff, Fleetway Fuels Inc., was a “voluntary removal” under Endorsement No. 10 of an insurance policy issued by Liberty Mutual Insurance Company.

The court found that the removal was voluntary, as it was undertaken as a result of a contractual obligation in a commercial lease, not due to compulsion by law or governmental order.

The exclusion in the policy therefore applied, and the insurer was not required to indemnify the plaintiff for environmental cleanup costs discovered during the removal.

The plaintiffs successfully resisted a motion brought by the defendant to the counterclaim's insurer to remove the plaintiffs' lawyer for an alleged conflict of interest.

The plaintiffs sought costs on a substantial indemnity scale against the insurer and the insurer's lawyer personally.

The court declined to award costs against the lawyer personally, finding his conduct was not unreasonable or derelict.

However, the court awarded substantial indemnity costs directly against the non-party insurer, finding the motion was unnecessary, speculative, and caused needless expense to the plaintiff in preserving her choice of counsel.

Costs were fixed at $13,400 net of setoffs.

The plaintiff's action for damages was dismissed after his vacant house burned down and his insurance claim was denied.

The court determined the costs payable to the successful defendants.

The court fixed costs on a partial indemnity basis at $15,000 for the broker and $5,000 for the insurer, noting the insurer had improperly continued to charge premiums and the broker had poor record-keeping.

Following an unsuccessful summary judgment motion brought by third parties against defendants on a third party claim, the defendants sought costs.

The court held that the defendants were successful and entitled to costs on a partial indemnity basis.

One responding party argued that another third party should bear any costs payable because it had refused to make admissions of fact that would have permitted it to exit the action.

The court found the refusal to provide admissions unreasonable but questioned its jurisdiction to order one party to pay another party’s motion costs.

Costs were fixed against both responding parties in specified amounts payable within 30 days.

Third parties brought motions for summary judgment seeking dismissal of a third party claim arising from alleged groundwater contamination caused by a leaking pesticide storage tank.

The moving parties argued they had no responsibility for maintenance of the tank or liability for any leak.

The responding defendants argued that liability among the supplier, distributor, and related agents depended on unresolved contractual relationships and factual findings.

The court held that discovery had not yet occurred and that the evidentiary record was incomplete.

Given the need to assess contractual arrangements and credibility, the court found the motion premature and concluded the issues required a full trial.