State Supreme Court rules in favor of power company insurers

Michael W. Hoskins
January 1, 2007
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The Indiana Supreme Court said today that insurance carriers are not required to pay for power companies' costs incurred in a federal lawsuit, nor the installation of new equipment to reduce pollution as ordered in a recent ruling by the Supreme Court of the United States.

In Cinergy Corp and Duke Energy v. Associated Electric & Gas Insurance Services, et al., 32S05-0604-CV-151, the state's highest court issued a 17-page unanimous opinion affirming a decision by Hendricks Superior Judge David H. Coleman. The trial judge had denied a motion by the power companies Cinergy and Duke for partial summary judgment.

Nineteen insurance companies had filed a complaint against Cinergy and Duke, wanting to determine the extent of the their insurance obligations with respect to a federal lawsuit relating to pollution reduction filed against the power companies by the United States, three states, and several environmental organizations. That case, U.S. v. Cinergy Corp. et al., No. 06-1224, was decided last year by the 7th Circuit Court of Appeals in Chicago. It upheld a decision by District Court Judge Larry McKinney in the Southern District of Indiana that an increase in actual emissions at industrial plants triggers new source review requirements for plants to install emissions controls.

The U.S. Supreme Court declined to hear the case in April, following a decision in a similar lawsuit that held the utility companies must install pollution control equipment on aging coal-fired power plants across the country.

According to this Indiana Supreme Court decision, the power companies filed a motion for plaintiff AEGIS to pay the more than $4 million the power companies have spent in defending itself in that Cinergy case - an amount exceeding the self-insured retention amount of up to $1 million. Costs include complying with the recent SCOTUS opinion that requires them to install equipment to reduce future emissions of pollutants, according to the state suit.

The insurance carriers - AEGIS - contended that the policies provide no coverage for claims made against the power companies in the federal suit, and therefore have no duty to pay defense costs.

The justices held that the phrase "ultimate net loss" as used in the insurance policies at issue, does not impose any responsibility on the carrier to pay for sums that the power companies might be legally obligated to pay as "ultimate net loss" for the costs of installing government-mandated equipment.

Justice Brent Dickson authored the opinion and wrote, "We affirm the trial court's denial of the motion because it seeks relief more extensive than that to which the power companies are entitled. ... Because the AEGIS insurance policies do not provide coverage for the costs of installing such equipment, the trial court did not err in denying partial summary judgment seeking to compel payment of all costs incurred by the power companies in defending all claims in the federal lawsuit."

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  1. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.