ILNews

COA: primary before true excess policies

Jennifer Nelson
January 1, 2008
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Indiana's "Lease Statute" can't be used to determine the priority of insurance coverage between a primary insurance policy and true excess policies, ruled the Indiana Court of Appeals today in a case of first impression.

Old Republic Insurance appealed the trial court's decision in Old Republic Insurance Co. v. RLI Insurance Co., et al., No. 49A04-0709-CV-523, which determined Old Republic's policy had higher priority over other excess policies and that the Lease Statute didn't allow for ranking different types of insurance policies.

Old Republic provided primary business auto insurance for the Kroger Co., but under certain circumstances, it would provide excess insurance.

Michael Laux drove as an independent contractor for Quickway Express Inc. and owned his own tractor-trailer. While hauling a Kroger trailer, he was involved in an accident that killed a boy and seriously injured his mother. The mother filed suit against Laux and Quickway, alleging negligence and wrongful death. Quickway maintained several excess insurance policies and one primary insurance policy.

Old Republic wanted a judicial determination of the priority of coverage afforded to Laux and Quickway; the court found Old Republic to be a primary policy that provides excess coverage only by operation of the policy's other insurance provision.

The court ranked the priority of coverage, ranking Quickway's primary policy first, then Old Republic, and then the excess insurance policies.

Old Republic appealed, arguing Indiana Code Section 27-8-9-9, Indiana's "Lease Statute," should apply to determine the priority of coverage between primary policies and true excess policies. Old Republic believed its coverage should have been considered excess instead of primary.

The Court of Appeals turned to its ruling in Monroe Guaranty Insurance Co. v. Langreck, 816 N.E.2d 485, 492 (Ind. Ct. App. 2004). In that case, the court determined that under Indiana's Owner Statute, a true excess policy is secondary in priority to a primary insurance policy, even if the primary tries to make itself excess. In this case, the court found Indiana's Lease Statute is in pari materia with the Owner's Statute and applies only to determine priority between insurance policies providing the same level of coverage, wrote Judge Edward Najam.

As such, the Lease Statute can't prioritize the excess insurer's policies ahead of Old Republic's. The Court of Appeals affirmed the denial of Old Republic's motion for summary judgment and the grant of summary judgment in favor of the excess insurers.
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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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