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
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.
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
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 man
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
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
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
March 13, 2013
Hydraulic Fracturing in Shale Plays: The Liability and Insurance Coverage Implications
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
Hydrofracking in the Marcellus Shale: The Liability and Insurance Coverage Implications , Webinar, April 20, 2011
Cornell Ruling Is Cause for Experts’ Concern
July 1, 2014