ILNews

Appeals court rules on gas station's insurance coverage case

Back to TopCommentsE-mailPrintBookmark and Share

Determining that an insurance company was obligated to defend and indemnify a Warsaw service station for contamination cleanup, the Indiana Court of Appeals has reversed a Kosciusko Superior Court decision finding otherwise.

The case, Indiana Farm Insurance Company as subrogee of Joseph Koors d/b/a Koors Amoco v. Harleysville Insurance Company, involves an Amoco station in Warsaw owned by Joseph Koors, who in 1998 notified the Indiana Department of Environmental Management of his desire to remove the underground storage tank system at the service station. An environmental site assessment found some contamination, including water contamination, had occurred. Koors later demanded that its insurance carriers during that period, Indiana Farm Bureau Insurance and Harleysville Insurance Company, defend and indemnify relating to IDEM’s actions, environmental testing and remediation. Harleysville in April 2009 notified Koors that it didn’t believe it had a duty to defend and indemnify him on the basis that any loss relating to the IDEM action came before its insurance coverage began in August 1998, that Koors had breached the policy by failing to notify Harleysville as soon as practicable that a loss had occurred, and that the pollution exclusion in the contract barred at least some of the coverage, if not all.

Farm Bureau filed a complaint for contribution from Harleysville in November 2009, and in August 2011 Kosciusko Superior Judge Duane Huffer granted summary judgment for Harleysville and against Farm Bureau.

On appeal, Farm Bureau contends that the “known loss” doctrine – first recognized by the Indiana Court of Appeals in 2000 – does not excuse Harleysville from its obligation to defend and indemnify Koors. The common law concept comes from the fundamental requirement in insurance law that the loss be fortuitous, and the appellate panel in this case found that Harleysville is not entitled to summary judgment on the basis that the known loss doctrine precludes coverage.

The appellate panel determined that the question of unreasonable delay in Koors notifying Harleysville about the loss is one for the jury to address, as is the question about prejudice in regard to the delay.

In analyzing whether gasoline can be considered a “pollutant” under Harleysville’s policies, the appellate panel relied on a decision from the Indiana Supreme Court in Am. States Ins. Co. v. Kiger, 662 N.E.2d 945, 947 (Ind. 1996). The language was similar to the policy language in that case, Judge Cale Bradford wrote, and so the court held that gasoline is not considered a “pollutant” under the Harleysville policy just as it wasn’t in Kiger. Harleysville is not entitled to summary judgment on the basis that the pollution exclusion applies to gasoline leaks.

The case is remanded for further proceedings consistent with this appellate opinion.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  2. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

  3. I am one of Steele's victims and was taken for $6,000. I want my money back due to him doing nothing for me. I filed for divorce after a 16 year marriage and lost everything. My kids, my home, cars, money, pension. Every attorney I have talked to is not willing to help me. What can I do? I was told i can file a civil suit but you have to have all of Steelers info that I don't have. Of someone can please help me or tell me what info I need would be great.

  4. It would appear that news breaking on Drudge from the Hoosier state (link below) ties back to this Hoosier story from the beginning of the recent police disrespect period .... MCBA president Cassandra Bentley McNair issued the statement on behalf of the association Dec. 1. The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer Darren Wilson for shooting Michael Brown. “The MCBA does not believe this was a just outcome to this process, and is disheartened that the system we as lawyers are intended to uphold failed the African-American community in such a way,” the association stated. “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” http://www.thestarpress.com/story/news/local/2016/07/18/hate-cops-sign-prompts-controversy/87242664/

  5. What form or who do I talk to about a d felony which I hear is classified as a 6 now? Who do I talk to. About to get my degree and I need this to go away it's been over 7 years if that helps.

ADVERTISEMENT