“The devil is in the details” is a familiar motto when it comes to legal drafting. Too many times attorneys make seemingly innocuous edits, such as “including but not limited to…” in contracts, or are not mindful of their time entries in terms of a client’s potential future claims for cost reimbursement. Two recent court decisions reinforce the importance of language choice relative to a party’s success on recouping costs relating to environmental liabilities. If the language is not precisely drafted, the claimant may be stuck with the costs it intended to recover from other parties.
On Nov. 12, 2013, the U.S. Court of Appeals for the First Circuit, in VCF Partners 26 LLC v. Cadlerocks Centennial Drive LLC, 735 F.3d 25 (1st Cir. 2013), denied a mortgage lender’s claim seeking to recover more than $100,000 in environmental investigation costs pursuant to an indemnity agreement. The case arose from a foreclosure of a mixed-use commercial and industrial property after the borrower defaulted on a $1.925 million loan.
