IN RE MIDLAND INSURANCE COMPANY ASARCO LLC, Claimant-ap

4357N. IN RE MIDLAND INSURANCE COMPANY ASARCO LLC, Claimant-ap — v. THE SUPERINTENDENT OF FINANCIAL SERVICES OF THE STATE OF NEW YORK, IN HER CAPACITY AS LIQUIDATOR OF MIDLAND INSURANCE COMPANY, res-res — McGuireWoods LLP, Austin, TX (J. Mark Lawless of the bar of the State of Texas, admitted pro hac vice, of counsel), for ap — DLA Piper LLP (US), New York (Aidan M. McCormack of counsel), for res — Order, Supreme Court, New York County (Michael D. Stallman, J.), entered December 12, 2016, which granted respondent's motion to confirm the decision of a referee, dated March 8, 2016, affirming the disallowance of claimant's claim, and denied claimant's cross motion to reject the referee's decision, unanimously affirmed, without costs.

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4357N. IN RE MIDLAND INSURANCE COMPANY ASARCO LLC, Claimant-ap — v. THE SUPERINTENDENT OF FINANCIAL SERVICES OF THE STATE OF NEW YORK, IN HER CAPACITY AS LIQUIDATOR OF MIDLAND INSURANCE COMPANY, res-res — McGuireWoods LLP, Austin, TX (J. Mark Lawless of the bar of the State of Texas, admitted pro hac vice, of counsel), for ap — DLA Piper LLP (US), New York (Aidan M. McCormack of counsel), for res — Order, Supreme Court, New York County (Michael D. Stallman, J.), entered December 12, 2016, which granted respondent’s motion to confirm the decision of a referee, dated March 8, 2016, affirming the disallowance of claimant’s claim, and denied claimant’s cross motion to reject the referee’s decision, unanimously affirmed, without costs.

Claimant, a mining, smelting, and refining company, seeks indemnification under four excess insurance policies issued to it by Midland Insurance Company of amounts paid pursuant to a settlement with the Environmental Protection Agency (EPA) and other government agencies in connection with the EPA’s clean-up of a residential area in Omaha, Nebraska, in which surface soils were contaminated by lead, in part, as a result of claimant’s operations. The policies exclude coverage for “property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land” unless the “discharge, dispersal, release or escape is sudden and accidental.” It is undisputed that these pollution exclusions bar any claim for indemnification of amounts paid to clean up soil contamination resulting from claimant’s lead emissions. Claimant contends that it is entitled to indemnification of “the clean-up costs directly related to the contamination caused by the chipping and flaking of lead-based paint on… houses in the [subject area].”

IN RE MIDLAND INSURANCE COMPANY ASARCO LLC, Claimant-ap

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