Marquee Background
Marquee Background

Offit Kurman Blogs

Business

Does Litigation Risk Loss of Potential Insurance for Environmental Harm? New Jersey Court Weighs In

February 22, 2023

By Matthew Karmel

Businesses risk losing potential insurance coverage for investigation and remediation of environmental contamination if they pursue claims against third parties without carefully considering and preserving available coverage.

In fact, in recent ligation in New Jersey with implications nationwide, two insurance companies tried to avoid providing coverage for environmental expenses incurred by the owner of the contaminated property by arguing that the property owner’s claims were barred by New Jersey’s “entire controversy” doctrine as a result of prior litigation between the property owner and its former tenant and the tenant’s insurance company. See Industrial Corner Corp. v. Public Serv. Mut. Ins. Co., Docket No. 20-06677 (D.N.J. February 8, 2023). New Jersey’s “entire controversy” doctrine is a unique formulation of the more typical doctrine of “res judicata,” which generally bars claims that could have and should have been brought in prior litigation.

However, based on the specific facts at issue, the New Jersey federal district court allowed the property owner to continue to pursue insurance coverage from the insurers despite the prior litigation.

That is, the property owner has owned the New Jersey property at issue since 1971. From 1971 through 2008, the property owner leased the property to a tenant conducting manufacturing. The tenant discharged perchloroethylene (“PCE”), a solvent used to clean metal and dry-clean fabric, through its operations and thereby contaminated the property.

After learning of the contamination, the property owner sued the tenant and the tenant’s insurance company in separate litigation for damages under the terms of the lease and the applicable insurance policies. The property owner successfully obtained compensation from these parties but was unable to recover all of its costs. As a result, following the conclusion of this litigation, the property owner sought coverage from its own insurance providers. As noted above, the providers responded by arguing that the property owner’s claims were barred by New Jersey’s “entire controversy” doctrine.

In evaluating the applicability of the “entire controversy” doctrine, the court determined that two of the three elements of the doctrine weighed in favor of dismissing the property owner’s claims. However, the third and final element was not satisfied. In particular, the court determined that the “entire controversy” doctrine did not apply because the claims by the property owner and its insurance providers did not arise from the same transaction or occurrence as the prior litigation against the former tenant and the tenant’s insurer. The court weighed several factors and determined that, even though all of the claims arise from the PCE contamination, the claims differ in certain key regards. The court also found it dispositive that the property owner could not have brought all of the claims in the same action because they were not yet ripe, i.e., because its insurance providers had not yet refused to provide coverage.

While this decision is helpful to insureds, it is easy to formulate a set of facts where the property owner’s insurers could have escaped liability based on the “entire controversy” doctrine or otherwise. As such, this decision provides a necessary warning to parties, whether located in New Jersey or beyond: carefully evaluate all potential recovery options, including private parties and insurance providers, before instituting litigation and take precautions to preserve and maintain all recovery options.

Categories: Business

Related People

  • Posts
  • About
  • Subscribe

Firm Highlights

  • Blog Posts
    Law, Love, and Life's Battles: Facing Breast Cancer
    What happens to a marriage and a family when a breast cancer diagnosis changes everything? In this episode of Love Ends, Law Begins, hosts Fara Rodriguez and Stephanie Lehman have a deeply personal conversation about breast cancer, marriage, family, and the challenges that can come with a serious illness. This episode is especially meaningful for Fara, who shares her own recent breast cancer diagnosis and journey. She opens up about discovering a lump, receiving her diagnosis, undergoing a double mastectomy and subsequent treatments, and navigating the emotional impact of cancer while continuing to work and care for her family. Fara and Stephanie discuss how a cancer diagnosis can affect a marriage in unexpected ways—from changing family roles and creating new caregiving responsibilities to putting pressure on finances, health insurance, and household responsibilities. They explore how illness can either bring couples closer together or create additional challenges, particularly when one spouse becomes the primary caregiver or when the family is dealing with fear and uncertainty. The conversation also addresses the unique challenges of parenting during an illness, including how to talk to children about a cancer diagnosis and how divorced parents may need to adjust parenting schedules and responsibilities when one parent becomes sick. From navigating medical expenses and insurance coverage to balancing work, parenting, caregiving, and intimacy, Fara and Stephanie offer a candid look at the ways illness can reshape relationships and family dynamics. In recognition of Breast Cancer Awareness Month, this episode provides an honest and personal conversation about facing cancer while navigating marriage, family, and the many practical challenges that come with a serious diagnosis. In this episode, you'll hear about: • Fara's personal breast cancer diagnosis and journey • How a cancer diagnosis can affect a marriage • The challenges of becoming a caregiver to your spouse • How illness can bring couples closer together—or create new challenges • Talking to children about a parent's cancer diagnosis • How divorced parents can navigate parenting responsibilities when one parent becomes ill • The financial impact of illness and the loss of household income • Health insurance and medical coverage considerations • How medical expenses can create additional financial strain • The importance of support from family, friends, and caregivers • Balancing work, parenting, treatment, and recovery • How illness can affect intimacy and marital dynamics • The importance of supporting children through a parent's illness • Why communication and cooperation matter during a health crisis • Breast Cancer Awareness Month and the importance of mammograms
  • Events
    AIA Tri-State Conference
    Princeton will serve as the backdrop for three days of connection, learning, and design leadership. From keynotes to tours to the Tri-State Design Awards, this year’s conference is designed to go far beyond education sessions. Kick off the week with pre-conference intensives and individual state component Design Award celebrations, followed by three days of education, inspiration, networking, and design excellence at the 2026 AIA Tri-State Conference—featuring pre-conference intensives, three keynote speakers, 25 education sessions, curated tours, an expo, spec academies, and the AIA Tri-State Design Awards—bringing together architects and design professionals from New Jersey, New York, and Pennsylvania to connect, learn, and celebrate the best of the profession. G2. Designing Secure Practices: Cybersecurity, Data Privacy, Contractual Provisions, and Insurance Risks for Architects (4:00 PM - 5:30 PM) Architects and design professionals increasingly rely on cloud platforms, BIM software, and digital tools to manage sensitive data, creating cybersecurity and privacy risks. A single incident can trigger liability claims, regulatory obligations, reputational harm, and insurance challenges. Yet many firms underestimate how contracts, insurance, and internal practices intersect during a breach. This program offers legal and insurance perspectives on cyber risk in architecture, examining liability exposure, risky contract provisions, and mitigation strategies. A cyber insurance expert will explain policy responses, coverage gaps, coordination with professional liability, and best practices for aligning insurance with contractual risk and protecting firms from evolving cyber threats. Learning Objectives: Identify key cybersecurity and data privacy risks faced by architecture firms and explain how these risks can impact professional liability and project outcomes. Analyze common contractual provisions to determine which clauses may increase exposure to cyber incidents and propose strategies to mitigate these risks. Evaluate the scope and limitations of cyber insurance policies, including coordination with professional liability coverage, to determine how a policy would respond in a breach scenario. Develop actionable risk management strategies by integrating legal, contractual, and insurance considerations to protect sensitive client and project data.