Recently, the U.S. District Court for the Southern District of Illinois found that Section 107(a) does create a right to subrogation. Departing from a recent decision from the 9th Circuit, this decision by a trial court in the 7th Circuit demonstrates that a payor or insurer is able to bring a subrogation claim to recoup payments even if the payor or insurer did not directly incur environmental response costs. In turn, it will be easier for the payor or insurer to recover costs. The parties in Blue Tee Corp. v. Xtra Intermodel, Inc. No. 13-0830-DRH, 2014 WL 2061590 (S.D. Ill. May 16, 2014) continue to litigate the matter, and trial is set to take place in July 2015. It is rare for the 7th Circuit Court of Appeals to hear an interlocutory appeal. As such, it may be a while before the appellate court weighs in on the issue.
I recently published an article providing more in-depth analysis on the decisions in Chubb Custom Ins. Co. v. Space Sys./Loral LLC, 710 F. 3d. 946 (9th Cir. 2013) and Blue Tee Corp. v. Xtra Intermodel, Inc. No. 13-0830-DRH, 2014 WL 2061590 (S.D. Ill. May 16, 2014).