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

Carl J. Pernicone

Phone212.915.5656

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Experience & Credentials
 

Practice Areas

  • Asbestos
  • Insurance & Reinsurance Coverage
  • Product Liability
  • Environmental
  • Professional Liability & Services
  • Toxic Tort
  • Energy
 
Contact InfoTelephone: 212.915.5656
Fax: 212.490.3038
http://www.wilsonelser.com/attorneys/carl_j_pernicone
 
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 

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

 
Biography

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.

Publications

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

Law360

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

Law360

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 man

News

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.

Awards & Distinctions

Selected for inclusion in New York Super Lawyers, 2006; 2009-2014

Events

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

Seminars/Webinars

March 22, 2012

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

Seminars/Webinars

March 7, 2012

Pernicone Participated in Webinar on Hydrofracking in the Marcellus Shale

Seminars/Webinars

April 14, 2011

Additional Events

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

Blogs

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

 
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
 
ISLN904492970
 

Documents by this lawyer on Martindale.com

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Cornell Ruling Is Cause for Experts’ Concern
Carl J. Pernicone, November 8, 2014
I recently co-authored an article for Law360 entitled “Cornell Ruling Is Cause for Experts’ Concern,” which covered the ruling by the New York Court of Appeals in Cornell v. 360 West 51st St. Realty, LLC (2014 NY Slip Op 02096). The ruling dealt with the admissibility of an...

New York Court of Appeals Sustains Anti-hydrofracking Zoning Regulations as Permissible Exercise of Municipal Authority Under Home Rule Law
Alexander L. Betke,Carl J. Pernicone, July 18, 2014
In a closely watched decision, a majority of the New York Court of Appeals has held that local anti-hydrofracking zoning rules can trump the state’s pro-energy development oil and gas law. The Court’s decision came in a pair of cases, In the Matter of Mark S. Wallach, as Chapter 7...

How Courts Have Ruled on the Still-open Issue of Whether the Clean Air Act Preempts State Common Law Tort Suits
Carl J. Pernicone, June 27, 2014
In its landmark 2011 decision in American Electric Power Co., Inc. v. Connecticut, et al., 131 S.Ct. 2527 (2011), the U.S. Supreme Court held that the Clean Air Act (CAA) and the actions by the U.S. Environmental Protection Agency (EPA) it authorized displace - that is, preempt - “any federal...

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Office Information

Carl J. Pernicone

150 East 42nd Street
New YorkNY 10017-5639




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Affiliations

   CLM