Carl J. Pernicone: Lawyer with Wilson Elser Moskowitz Edelman & Dicker LLP

Carl J. Pernicone


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AV® Preeminent

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Experience & Credentials Ratings & Reviews

Practice Areas

  • Asbestos
  • Insurance & Reinsurance Coverage
  • Product Liability
  • Environmental
  • Professional Liability & Services
  • Toxic Tort
  • Energy
Contact InfoTelephone: 914.872.7556
Fax: 914.323.7001
University Iona College, B.A., summa cum laude, 1980
Law SchoolFordham University School of Law, J.D., 1983
Admitted1984, New York; U.S. District Court, Eastern, Southern and Western Districts of New York; U.S. Court of Appeals, Second Circuit; U.S. Supreme Court

Memberships & Affiliations

American Bar Association, Litigation Committee; Tort and Insurance Practice Committee
New York State Bar Association, Environmental Law Committee
Association of the Bar of the City of New York, Ad Hoc Litigation Committee
New York County Lawyers Association
Council on Litigation Management
Defense Research Institute
Environmental and Emerging Claims Manager Association
Fordham University School of Law, Environmental Law Journal, editorial advisory board


Carl Pernicone is co-chair of the firm's Insurance-Reinsurance Coverage practice. Carl has extensive experience with matters involving toxic tort and environmental liability claims, including property insurance claims. He also applies the skill set he has developed in handling complicated environmental issues to assist insurers facing claims in emerging coverage areas such as climate change and clean energy technologies.

Carl adds value to his client relationships through responsiveness and regular follow up. He takes the time to get to know the issues of interest to each of his clients - including issues not related to projects Carl is handling for them- and frequently will pass along relevant news articles, email alerts or other materials to his clients. Carl also provides regular follow up on key topics of interest to attendees of educational programs he has presented.

In addition to his legal practice, Carl manages Wilson Elser's national attorney training program and is chair of the Associate Development Committee.

Areas of Focus

Insurance-Reinsurance Coverage
For more than two decades, Carl has represented insurers and reinsurers across the country as counsel of record in complex, high-exposure insurance and reinsurance coverage disputes in state and federal courts. In addition to litigating matters, he analyzes coverage, issues coverage opinions, prepares reservation of rights and disclaimer letters, drafts policy wording, and drafts insurance coverage settlement and buyback agreements.

Much of Carl's work concerns coverage disputes arising from so-called long-tail injury claims, such as those involving asbestos, lead, silica, workplace chemical exposure and environmental liability. More recently, Carl has applied his extensive experience assisting insurance companies with long-term pollution cases from the 1980s and 1990s to address coverage implications for his clients in emerging areas such as climate change liability and hydrofracking for natural gas trapped in shale.

Currently, Carl is counseling insurers on the coverage implications of claims brought by plaintiffs residing in the vicinity of hydofracking operations. The plaintiffs are seeking medical monitoring for future injury due to the potential seepage of fracturing fluid into groundwater and the potential release of methane gas during the natural gas extraction process. In addition to such toxic tort and property damage claims, Carl is counseling insurers on potential product liability claims alleging defective drilling equipment.

Many of these same issues are surfacing in connection with other clean energy technologies such as wind and solar, and Carl presently is involved in analyzing them on behalf of his insurer clients.

Awards & Distinctions

AV Preeminent Rated by Martindale-Hubbell
Selected for inclusion in New York Super Lawyers, 2006; 2009-2014


Cornell Ruling Is Cause for Experts' Concern July 1, 2014


Kentucky Federal Court Sustains Hospital Insurer's Denial of Claim Due to Untimely Notice, Declines to Require Insurer Show Prejudice

Conflicts in Primary and Excess Policy Language

June 8, 2015

A recent decision by the U.S. District Court, Eastern District of Kentucky cautions excess insurers desiring to “follow” a primary policy would be well-advised to use language that ensures neither policy conflicts. In addition, claims-made and reporting requirements in directors and officers or professional liability policies are conditions precedent to coverage that cannot be trumped by the notice-prejudice rule applicable to occurrence-based policies.

Colo. Lone Pine Case Is Setback for Fracking


May 19, 2015

Colorado High Court Nixes Use of Lone Pine Orders to Streamline Colorado Fracking Litigation

Energy Industry's Defense of Fracking in Colorado

May 6, 2015

A recent ruling by the Colorado Supreme Court represents a setback for the energy industry in its defense of fracking litigation in Colorado. Had they won, the industry could have used the decision to secure early dismissals of fracking suits. Now, as a consequence of this ruling, Colorado fracking defendants are likely to see an increase in defense costs, fewer dismissals and fewer early settlements.

Federal Government Issues Long-awaited Final Rules Governing Fracking on Federal Land and Indian Land

Final Rules: Fracking on Federal Land and Indian Land

March 23, 2015

The U.S. Bureau of Land Management has issued “final” rules governing hydraulic fracturing operations on federal lands and land owned by Indian tribes. It should be emphasized that only a small fraction of hydraulic fracturing activity in the United States takes place in these areas. In addition, the fracking rule-making process presented the bureau with a golden opportunity to grant the fracking opponents' wish of completely banning fracking operations; yet it declined to do so.

Ohio High Court: State Oil and Gas Law Trumps Anti-fracking Zoning Rules Enacted by a Municipality

State Law Trumps Municipal Anti-fracking Zoning Rules

February 26, 2015

Does the Home Rule Amendment to Ohio's Constitution permit localities to enact anti-fracking zoning regulations contrary to Ohio's oil & gas development laws? No, said a majority of the Ohio Supreme Court on February 15, 2015.

Wisconsin Supreme Court: Pollution Exclusion Bars Coverage for Well Contamination Resulting from the Application of Manure and Septage as Fertilizer

FC&S Legal

February 1, 2015

New York High Court Finds Lead Exposure Injuries to Children of Different Families a Single Loss for Coverage Purposes

FC&S Legal

January 22, 2015

Wisconsin Supreme Court: Pollution Exclusion Bars Coverage for Well Contamination Resulting from the Application of Manure and Septage as Fertilizer

Wisconsin Supreme Court: Pollution Exclusion

January 14, 2015

In two recent decisions, the Wisconsin Supreme Court sought to resolve conflicting court of appeals' decisions on whether manure and septic waste are “pollutants” under standard insurance policy exclusions when they contaminate groundwater after being applied as fertilizer. The Court rejected categorically defining manure and septage as “pollutants, ” instead determining that such fertilizing excrement unambiguously falls within the applicable policy's definition of “pollutants” once it has contaminated a water supply.

North Korea's Attack Raises Critical Coverage Issues and TRIA Implications

Cyber Alert: FBI's Determination May Negate Coverage for Sony's Losses

December 23, 2014

While cyber espionage, crimeware, and other types of cyber attacks and theft are nothing new, even for Sony, the FBI's determination that North Korea was behind the recent devastating attack raises critical alarms. The attack did not merely harm Sony Pictures Entertainment's (SPEs) intellectual property and data; it was intended to and did cause physical harm to its network and operations. North Korea literally planted and detonated a bomb within SPE's systems. The implications for businesses, brokers and insurers are significant and raise additional concerns about Congress's failure to extend the Terrorism Risk Insurance Act of 2002.

New York Environmental Commissioner Will Issue an Order Early Next Year Banning “Fracking, ” Under a Moratorium Since 2008

New York Second State to Ban “Fracking”

December 22, 2014

New York's Department of Environmental Conservation is prepared to move forward on banning high-volume hydraulic fracturing based on the New York State Department of Health's long-awaited report, which concluded that: “Until the science provides sufficient information to determine the level of risk to public health... and whether the risks can be adequately managed, high-volume hydraulic fracturing should not proceed in New York State.”

Recent Decisions Reinforce the Value of Quality over Quantity in a Reservation of Rights Letter

Value of an Effective Reservation of Rights Letter

December 12, 2014

In two recent cases, Advantage Builders & Exteriors v. Mid-Continent Casualty Co. No. WD 76880 (Mo. Ct. App. Sept. 2, 2014) and EAN Services, LLC v. Brunson, No. 2-14-118 (Ill. Ct. App. September 8, 2014), the courts remind insurance carriers that an ineffective reservation of rights can be costly. In Advantage Builders, the Missouri appeals court affirmed the trial court's finding that the insurer was liable for compensatory damages for bad faith failure to settle.

Under the Right Circumstances, an Insured Entitled to “Independent Counsel” in California Can Retain More Than One Firm

Multiple Firms as Cumis Counsel under Reservation of Rights

September 5, 2014

A California court holds that an insured entitled to “independent counsel” can retain more then one firm where the insured demonstrates that the retention of a second firm and the fees charged by that firm are “reasonable and necessary” to the defense of the underlying claim.

Law360 Cites Carl Pernicone on Whether the Clean Air Act Preempts State Common Law Tort Suits


July 11, 2014

New York Court of Appeals Sustains Anti-hydrofracking Zoning Regulations as Permissible Exercise of Municipal Authority Under Home Rule Law

New York Anti-hydrofracking Zoning Regulations

July 1, 2014

In a recent case before the New York Court of Appeals, energy company defendants argued that the state's oil and gas law contained a so-called “supersession clause” that preempted all local zoning laws, such as the anti-hydrofracking rules at issue. The municipalities countered that zoning regulations were lawfully enacted pursuant to the home rule authority provided them by the state constitution. The court sided with the municipalities.

How Courts Have Ruled on the Still-open Issue of Whether the Clean Air Act Preempts State Common Law Tort Suits

Does the Clean Air Act Preempt State Tort Suits?

June 24, 2014

To date, only four reported decisions have addressed whether state laws are preempted in the wake of the U.S. Supreme Court's landmark 2011 decision holding that the Clean Air Act preempts “any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired plants.” Three of those decisions have rejected state law preemption and one has embraced it.

New York Appeals Court Sustains Asbestos Plaintiffs' Direct Suit Against Liability Insurer of Dissolved Corporate Defendant

FC&S Legal

June 12, 2014

Bad Faith Claim Against Insurer Ruled Unsustainable by New York Federal Courts Where Based on Same Facts as Breach of Contract Count

S.D.N.Y.: Bad Faith Claim Against Insurer Unsustainable

June 2, 2014

Two recent New York federal court decisions confirm that, under New York law, to sustain a claim against an insurer for breach of the covenant of good faith and fair dealing, the insured must demonstrate that the claim is based on a different set of facts than those for a claim for breach of contract under the policy.

Ruling on Specific Causation in Toxic Tort Cases


May 13, 2014

New York Appeals Court Sustains Asbestos Plaintiffs' Direct Suit against Liability Insurer of Dissolved Corporate Defendant

NY Court Rules “Substituted Service” Permissible

May 1, 2014

A New York appeals court recently sustained a direct suit by asbestos plaintiffs against the liability insurer of a dissolved corporate defendant. The court ruled that “substituted service” on the dissolved corporation's insurer was permissible where the more traditional forms of service were unavailing and where the insurer was the “real party-in-interest.”

Wyoming Supreme Court Vacates on Procedural Grounds a Lower Court Decision Holding Ingredients in Fracking Fluid Formulas Qualify as “Trade Secrets”

Are Fracking Fluid Formulas “Trade Secrets”?

March 19, 2014

In a recent case, the Wyoming Supreme Court vacated a trial court decision upholding the decision of the Wyoming Public Records Commission that the ingredients in hydraulic fracturing formulas constitute “trade secrets.” The high court determined that the trial court was obligated to undertake an independent examination and exercise its own independent judgment as to whether the ingredients in the fracking formulas qualified as trade secrets. Accordingly, it reversed and remanded the matter to the trial court for further proceedings.

West Virginia High Court Finds Carbon Monoxide Exposure Claims Arising from the Same Source Are a “Single Occurrence” for Coverage Purposes

Two Toxic Exposures Constitute the Same “Occurrence”

March 13, 2014

The West Virginia Supreme Court of Appeals decided that two instances of carbon monoxide exposure that happened in two different apartments in the same apartment complex during the same general time frame and from the same furnace constituted one occurrence, and were subject to a single limit of liability.

New York Court of Appeals Holds Property Policy Time Limitation for Replacement Costs Suits Amounts to “Claim Nullification”

NY Bars Time Limitation for Replacement Costs Suits

March 12, 2014

In a recent opinion, the New York Court of Appeals struck down property policy time limitation for replacement costs suits, holding it amounts to “claim nullification” where the insured could not have reasonably completed replacement work in the required time period.

New York Court of Appeals Sustains Delay in Disclaimer Based on Insured's Lack of Cooperation

Disclaimer Delay Excused Due to Insured's Failure to Cooperate

March 6, 2014

The New York Court of Appeals sustained an insurer 's delay in disclaiming coverage based on the insured's failure to cooperate when record facts confirmed the insurer issued a disclaimer as soon as reasonably possible after it determined that the insured would not cooperate in the defense, investigation or settlement of the claim.

Unanimous Wisconsin High Court Sustains Broad Asbestos Exclusion That Comprehensively and Unambiguously Bars Coverage for Any Asbestos-related Loss

Broad Asbestos Exclusion Bars Coverage in Wisconsin

January 16, 2014

A case recently decided by the Wisconsin Supreme Court illustrates an ongoing trend in asbestos case law. Even jurisdictions that tend to be more favorable for insureds are likely to sustain a broad asbestos exclusion that comprehensively and unambiguously excludes coverage for any asbestos-related losses, regardless of the underlying tort alleged.

Pennsylvania Supreme Court Declares Portions of Marcellus Shale Act Unconstitutional, Upholds Local Regulation of Oil and Gas Operations

Pennsylvania Restores Ability of Municipalities to Limit Drilling

January 15, 2014

In a recent decision, Pennsylvania's Supreme Court confirmed municipalities' constitutional right to limit gas drilling activities through local zoning rules and imposed a more structured state decision-making process to grant waivers from setbacks required for certain bodies of water.

Illinois Appeals Court Rejects Application of Absolute Pollution Exclusion to Claim for Unpleasant Odors Emanating from Hog Farm Manure

IL Appeals Court Rules on Absolute Pollution Exclusion

December 24, 2013

An intermediate Illinois appeals court rejected the applicability of the absolute pollution exclusion to a claim involving obnoxious odors emanating from hog farm manure, reasoning that the claim did not involve “traditional environmental pollution” as required by an Illinois precedent interpreting the exclusion.


Turning up the Heat on Historic Policies: How and Why Insureds Will Try to Access Coverage for Climate Change Liabilities under These Policies and How Insurers Can Defend against Such Claims

Speaking Engagements

October 9, 2014

Pacific Northwest Chapter of the Chartered Property and Casualty Underwriters (CPCU) Society

Gasland vs. Fracknation: A Discussion of the Future Litigation on Gas Exploration

Speaking Engagements

March 13, 2013

Perrin Conferences

Hydraulic Fracturing in Shale Plays: The Liability and Insurance Coverage Implications

Speaking Engagements

October 15, 2012

Atlantic Claim Executives Association Fall 2012 Coverage Workshop

Carl Pernicone Participates in Perrin's Legal Webinar on Hydrofracking


March 22, 2012

Carl Pernicone to Speak at Webinar on Latest Litigation Related to Hydrofracking Operations


March 7, 2012

Pernicone Participated in Webinar on Hydrofracking in the Marcellus Shale


April 14, 2011

Additional Events

Hydrofracking in the Marcellus Shale: The Liability and Insurance Coverage Implications, Webinar, April 20, 2011


EnergyWire Queries Wilkinson and Pernicone on the Bureau of Land Management's Controversial Fracking Regulatory Scheme

April 21, 2015

Update on Federal and State Regulations of Hydraulic Fracturing Operations

August 20, 2014

New York's Highest Court Hears Argument on Whether Municipalities Can Ban Fracking through Zoning

August 20, 2014

Texas Jury Returns $3 Million Award to Family Claiming Shale Gas Operations Damaged Their Heath

August 20, 2014

Holders of Mineral Rights Lose First Round, Appeal to Compel New York to Expedite Review of Proposed Hydraulic Fracturing Regulations

August 20, 2014

Business Insurance Quotes Carl Pernicone in Hydrofracking Article

March 2, 2014

One Year after “Sandy, ” Property Insurers Engulfed by Wave of Lawsuits

Unprecedented Influx of “Sandy” Cases

December 11, 2013

Insurance companies with policyholders in the tri-state area find themselves in the crosshairs of several law firms intent on extracting damages in the wake of Superstorm Sandy. Local attorneys are working side by side with out-of-state law firms familiar with the legal aftermath of hurricanes, including Katrina. Together, they are systematically filing lawsuits in both state and federal courts in lower New York and New Jersey. As part of their efforts, they have embarked on an advertising campaign to potential claimants, outlining in detail their qualifications and proposed approaches.

Pernicone Voices Energy Producers' Opposition to Massachusetts's Proposed Fracking Moratorium

December 5, 2013

Agents of America Publishes Article by Pernicone, Cohen and Graham

April 17, 2013

Business Insurance Quotes Carl Pernicone in Hydrofracking Article

February 24, 2013

Wilson Elser's Carl Pernicone Accepts Invitation to join the Council on Litigation Management

May 25, 2011

Carl Pernicone has accepted an invitation to join the Council on Litigation Management (CLM), an invitation-only organization.

Reported CasesRepresentative Matters: Budofsky v. Hartford Insurance Co. (seminal New York decision sustaining applicability of absolute pollution exclusion for environmental claims) Maryland Casualty Co. v. W.R. Grace & Co,; In Re Union Carbide Corporation Multi-State Environmental Coverage Litigation; G. Heilman Brewing Co. v. Royal Group, Inc, et al. Borg-Warner Corporation v. INA, et al. In Re Babcock & Wilcox asbestos bankruptcy proceeding; In Re W. R. Grace asbestos bankruptcy proceeding; In Re Federal-Mogul Corporation asbestos bankruptcy proceeding; In Re Quigley asbestos bankruptcy proceeding

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Kentucky Federal Court Sustains Hospital Insurer’s Denial of Claim Due to Untimely Notice, Declines to Require Insurer Show Prejudice
Edward M. O'Brien,Carl J. Pernicone, June 22, 2015
The U.S. District Court for the Eastern District of Kentucky recently held that an insurer properly denied coverage to a hospital because the hospital gave untimely notice of the claim. In Ashland Hospital Corporation v. RLI Insurance Company, Civil Action No. 13-143-DLB-EBA (E.D. Ky. Mar. 17,...

Colorado High Court Nixes Use of Lone Pine Orders to Streamline Colorado Fracking Litigation
Elayna M. Fiene,Cathleen H. Heintz,Carl J. Pernicone, May 15, 2015
On April 20, 2015, the Colorado Supreme Court issued a ruling interpreting Rule 16 of the Colorado Rules of Civil Procedure and implicating the scope of a trial court’s inherent authority to manage the cases before it. In Antero Resources v. Strudley, the issue decided by the Court was...

Federal Government Issues Long-awaited Final Rules Governing Fracking on Federal Land and Indian Land
Carl J. Pernicone,Kathleen D. Wilkinson, March 31, 2015
On March 20, 2015, the Department of the Interior’s (DOI’s) Bureau of Land Management (BLM) issued its long-awaited “final” rules governing hydraulic fracturing operations on federal lands and land owned by Indian tribes.

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Office Information

Carl J. Pernicone

150 East 42nd Street
New YorkNY 10017-5639


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