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Vermont Supreme Court Triggers Coverage For Pollution

But First, A Small Correction

There's an old joke that Latin is sic, sic, sic. Modern English scholars use "sic" to show that the typo is in the original, and likewise that "we're too smart to have made that error - it's in the original."

I think that the Vermont Supreme Court may misunderstand at least one environmental term. They use the "sic" reference in their recent opinion of Hardwick Recycling v. Acadia Insurance just after the word "surficial." See paragraph 7 of their opinion.

Admittedly, it sounds like an invented word. But, according to Princeton, "surficial" means "pertaining to or occurring on or near the [E]arth's surface; 'a surficial geologic deposit.' "

The Supreme Court's opinion in paragraph 7 reads, "As an apparent follow-up to investigations conducted pursuant to the May access order, the State, through the Hazardous Materials Management Division of ANR, issued a 'Request for investigative activities at Green Mountain Sanitation, Hardwick (VT DEC Site #95-1792),' to plaintiffs' consultant, which was copied to plaintiffs' counsel and Richard Towns among others. The letter stated that DEC personnel had discovered '(1) . . . surficial [sic] oil discharge; (2) a leaking drum which contained volatile organic compounds; (3) elevated levels of total petroleum hydrocarbons in the swale which discharges into the Lamoille River and; (4) buried solid waste material throughout the property.' The State concluded that additional work was necessary to determine if further 'investigation, monitoring and /or remediation' was warranted and thus requested plaintiffs to undertake substantial on-site work." Beyond a 48-word sentence, followed by a 42-word sentence, "surficial" appears to be the correct word, correctly used.

Now certainly I've made mistakes, and if you scan through my archives, you'll more than likely find a bunch, so it's difficult to cast stones. But, in the very beginning of the posted opinion, the Vermont Supreme Court asked for corrections, so here is one, and MIPTC has followed up with the letter requested by the Court.

The important part of the decision shouldn't be overshadowed though. The Court decided that "damages" as defined in Hardwick's comprehensive general liability policy included claims by the Vermont Agency of Natural Resources. Acadia added an endorsement to Hardwick's policy for "pollution liability hazards." The Court's decision, however, isn't final. It sent the case back to the trial court to see whether an exclusion applies.

We'll keep an eye on it.

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Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Sunday, January 09, 2005 at 23:28 Comments Closed (2) |
 
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