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Dexter v. Cosan Chem. Corp.

Citation: 30 ELR 20100
No. No. 91-5436 (DRD), (D.N.J., 08/26/1999)

The court holds that a chemical company produced sufficient evidence to create a genuine issue of material fact as to the existence and terms of a lost insurance policy. The company submitted its claim for defense and indemnity costs incurred in connection with the remediation of contamination at the company's former facility, but neither the company nor the insurer could find the insurance policy. Consequently, the insurer moved for summary judgment, claiming that the company's complaint should be dismissed.

The court first holds that because no allegations of fraud exist, the company need only prove the existence and terms of the policy by a preponderance of the evidence. Next, the court holds that the material submitted by the company, when considered as a whole, is sufficient to create a genuine issue of material fact as to whether the insurer issued a policy and what the exact terms were. The company produced a sufficient amount of secondary evidence that tends to prove the existence of an insurance policy sold to it by the insurer, and also produced evidence that tends to prove the terms of the policy.

Counsel for Plaintiffs
Kevin E. Wolff
McElroy, Deutsch & Mulvaney
1300 Mount Kemble Ave., Morristown NJ 07962
(973) 993-8100

Counsel for Defendants
Lee H. Wertheim
Lowenstein Sandler
65 Livingston Ave., Roseland NJ 07068
(201) 992-8700