McCarter and English LLP on the Virginia Court’s Narrow Reading of “Proximate Cause” Allegations in a Complaint Is Contradicted by a California Court’s Reading of the Same Complaint

Adam J. Budesheim   By Adam J. Budesheim, Associate, McCarter & English, LLP

In AES Corp. v. Steadfast Insurance Co., 725 S.E.2d 532 (Va. 2012), the Supreme Court of Virginia became the first ultimate appellate court to rule on whether general liability policies cover global warming injuries.  The Virginia court, limiting itself to the "four corners" of the complaint and the "four corners" of the policy, ruled that because the underlying complaint alleged its global warming injuries were proximately caused by the defendants' intentional actions, the global warming injuries were the "natural and probable" consequences of defendants' activities and not covered by the policy at issue.  In contrast, the California federal district court in the underlying case, in analyzing the unrelated question of whether it had jurisdiction over the complaint, analyzed the complaint within its four corners and concluded the plaintiffs' factual allegations could not support its allegation that defendants' intentional actions caused its global warming injuries.  Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863 (N.D. Cal. 2009).  Had the Virginia court looked to the factual allegations of the complaint, rather than accepting the "proximate cause" allegation at face value, the court's coverage determination may have been different.

Mr. Budesheim is an Associate with McCarter and English in its Newark, New Jersey office. He represents clients in insurance coverage litigation with a focus on policyholders seeking coverage for liabilities related to asbestos, environmental, bodily injury, and property damage claims. He has also represented clients seeking coverage under professional liability and directors and officers insurance policies. He has developed significant experience in insurance allocation issues for long-tail liabilities, including asbestos and silicosis. Mr. Budesheim's allocation experience includes both the legal complexities as well as the implementation and practical application of allocation models.

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  • 08-22-2012

I came across attorneys in New Jersey, I was wondering if anyone had knowledge about. The firm's name is Windels, Marx, Lane, Mittendorf.The attorneys I dealt with were David Swerdlow and Craig Gottilla. I had a case in which they represented the defendant, State Farm Insurance Company in Federal Court in Newark, New Jersey. The case dealt with a non-payment claim of a flood in Jersey City HUD apartment complex. An issue in the case was the failure of obtaining an building inspection by HUD. The building complex primarily had tenants from India, Pakistan and Afghanistan. It was my strong belief that the C.I.A had placed surveillance into these buildings. That was the reason why a building inspector could be found. Windels, Marx, Lane, Mittendorf was Bill Casey's, former director of the C.I.A, law firm. They commuted hours to the court in Newark from Princeton, New Jersey on a very small insurance claim. Their attorney's fees far outweighed the cost of the claim. So I knew this interference on the case had to do with preventing a buiding inspection and the surveillance that would be uncovered. During the course of the litigation, these attorneys demonstrated such bad faith. When I tried to obtain the transcript of remarks they made at a settlement conference in front of Hon. Mark Falk, the language was missing from the transcript. I brought this to the attention of the Chief Judge, Hon. Brown; the day I sent the fax to him notifying him of this, my motion in front Hon. Falk was denied. Hon. Brown sent me a letter indicating that the judge was allowed to alter a transcript when there is a pending motion and oral decision. When I wrote back to the chief judge explaining that there was no pending motion but only a settlement conference, the Hon. Falk was removed from my case. I made telephone calls to report this to the office of Inspector General of the C.I.A., I tried to explain to them that the brakes in my car were tampered with, my tires were slashed,, I found a listening device in my car and I had received death threats. They refused to listen to me, so I sent them an email. In response the C.I.A called the local police near my mother's home, which is 25 miles away in another county, telling her that the C.I.A called them because they received an email saying that she was going to kill someone, vandalize a car and kill herself. They also said the email was sent by my elderly mother, under her social security number. Rather, it was sent by me in a different county 25 miles away. However, I certainly did not write those things in the email. The C.I.A could have traced the IP address clearly to me located in Manhattan, especially since they knew I called three times explaining the matter to them. There has been phone tapping wherein my and my family's medical treatment have been interfered with. A family member has been turned away from an emergency room in the process of a stroke. He was was told he did not need medical care. He was also turned away from same emergency room when he had a broken arm. They are listening in on telephone conversations and know the doctor and hospital we am going to and interfering with the treatment. If anyone knows any information concerning these lawyers or law firm I would appreciate it if you would forward it to me. Eleanor Capogrosso Esq. 211 East 43rd Street Suite 1100 New York, NY 10017 (tel) 212-509-7700 (fax)212-509-7600