Travelers Cas. & Sur. Co. v. Vale Can. Ltd.

Opinion

Travelers Cas. & Sur. Co. v Vale Can. Ltd.

2026 NY Slip Op 05150

August 27, 2026

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Travelers Casualty & Surety Company, Plaintiff,

v

Vale Canada Limited, Defendant-Appellant, AIU Insurance Company et al., Defendants, THE North River Insurance Company, et al., Defendants-Respondents.

Decided and Entered: August 27, 2026

Index No. 654028/21|Appeal No. 6052-6053|Case No. 2025-01326 2025-02964|

Before: Webber, J.P., Scarpulla, González, Rodriguez, Higgitt, JJ.

Pillsbury Winthrop Shaw Pittman LLP, New York (David F. Klein of counsel), and Jeffrey W. Mikoni of the Bar of the District of Columbia, admitted pro hac vice, of counsel, for appellant.

Kennedys CMK LLP, New York (Heather E. Simpson of counsel), for respondents.

[*1]

Order, Supreme Court, New York County (Andrew Borrok, J.), entered on or about February 26, 2025, which, to the extent appealed from, granted the motions of defendants North River Insurance Company and United States Fire Insurance Company for summary judgment declaring that a pollution exclusion in the policies they issued to defendant Vale Canada Limited or its predecessor barred recovery for damages related to four specific sites owned or operated by Vale, and denied Vale's motions to take judicial notice of Canadian law and for partial summary judgment against North River and US Fire, unanimously modified, on the law, to grant the motion to take judicial notice, and otherwise affirmed, without costs. Order, same court and Justice, entered on or about May 12, 2025, which, to the extent appealed from, granted North River and US Fire's motion for summary judgment with respect to 18 other sites owned or operated by Vale, unanimously affirmed, without costs.

This insurance coverage dispute concerns whether defendant Vale Canada Limited has insurance coverage for potential environmental remediation obligations to third parties based on alleged contamination related to its mining operations at 26 sites.

Initially, the court should have granted Vale's motion to take judicial notice of Canadian law, which motion was not moot. The parties do not dispute that Vale furnished the court with "sufficient information" to enable the court to comply with Vale's request (CPLR 4511[b]; Eccles v Shamrock Capital Advisors, LLC, 42 NY3d 321, 341-342 [2024]; Sea Trade Mar. Corp. v Coutsodontis, 111 AD3d 483, 484 [1st Dept 2013]). Nevertheless, the court did not err in applying the law of the forum state, New York, in addressing the insurers' summary judgment motions. Even if Vale was correct that the court should have found that a different trial court decision represented the state of Ontario law regarding the interpretation of the relevant policy language, application of New York law would not have made "a material difference to the outcome" of this case (TBA Global, LLC v Proscenium Events, LLC, 114 AD3d 571, 572 [1st Dept 2014]).

[*2]

The court properly granted defendant insurers' motion for summary judgment, finding that the pollution exclusions in the subject policies barred coverage (see Northville Indus. Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 89 NY2d 621, 633 [1997]). Regardless of whether New York or Ontario law applied to the interpretation of these exclusions, and even if Vale's identification of controlling Canadian law were correct, the insurers established that Vale's claims with respect to the four test sites were caused by contamination arising from leaching through acid rock drainage, a gradual process often occurring over decades, not a sudden or abrupt event that was exempt from the exclusion. In opposition, Vale offered no evidence to raise a triable issue of fact as to whether the original discharge or seepage was due to a sudden event at any location. Regarding two of the four representative test sites, Pipe Mine and Chicago Mine, Vale offered no testimony or documents supporting any temporally abrupt release and could identify no temporally abrupt event. As for the Thompson Complex and the Copper Cliff Smelter sites, Vale's corporate representative testified that she was not aware of any temporally abrupt events at either site that caused the discharge of pollutants. In addition, the court properly granted summary judgment to defendant insurers with respect to 18 other sites, in light of the parties' April 11, 2025 so-ordered stipulation concerning those sites.

Further, the court properly denied Vale's motion against the insurers for summary judgment on the issue of whether Vale's late notice of claim automatically allowed the insurers to disclaim coverage. There was no application pending before the court seeking to deny coverage on the basis of late notice. Vale merely sought a determination concerning which law, New York or Ontario, should apply. Nothing before the court indicated that the insurers were likely to address the late notice

question substantively, and any ruling on Vale's premature motion would have amounted to an advisory opinion (see Olszewski v Park Terrace Gardens, Inc., 27 AD3d 308, 308 [1st Dept 2006]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: August 27, 2026