Brownfield Developer Settles Case Over Contaminated Dust

Essex Insurance Co. v. Lueron Dixon, et al., 2010 U.S.Dist. LEXIS 98681 (S.D.Fla. 9/21/10), Dania Distribution Centre Ltd purchased a 15.5 acre site located in the City of Dania Beach in 2001 to construct a distribution center. The site had formerly been used as landfill for dredged sand and medical waste.

Pre-acquisition groundwater sampling revealed presence of  benzene, napthalene, lead, diesel and chlorinated solvents. In May 2002, the Dania defendants obtained a six-month GCL policy from Essex Insurance Company that covered the property as vacant land. Soil samples collected approximately 18 months after the purchase in November 2002 and after the expiration of the policy  detected heavy metals and asbestos. The  *** levels were below commercial standards but twice the allowable levels for residential properties.

Dania began construction activity in September 2003 after obtaining a building permit. However, despite the sampling results, Dania apparently failed to control dust. 90 Nearby residents and workers then filed a lawsuit alleging bodily injury and property damage claims.  The insurer refused to defend or participate in settlement. After the settlement, the insurer seeks declaratory judgment and Dania defendants counterclaim for breach of contract and bad faith. Federal district court grants motion for summary judgment that pollution exclusion barred covered.

My question is- who does not implement a community air monitoring plan and dust control when developing a contaminated site? To borrow from a popular commercial-"I mean, really?"