ELR Citation: 43 ELR 20017
No(s). 11-1931 (1st Cir. Jan 18, 2013)

The First Circuit, in a case involving an insurance company's obligations to its insured for damages stemming from contamination at a former manufactured gas plant, upheld a lower court decision allocating damages evenly across the 121-year span from the time of plant operations to trial, thereby reducing the insurance company's share of damages from 100% to less than 15% of the insured's recoverable costs. A jury initially found the insurance company liable for $1,699,145, but the jury was not asked to assess the total property damage that occurred exclusively during the insurance company's policy period. Because the evidence does not permit a fact-based allocation, and because the insured is judicially estopped from contradicting its statements at trial that contamination was continuous, the lower court properly allocated damages evenly across the 121-year span.