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Judges split on whether 2 insurers must pay for damage

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An Indiana Court of Appeals judge dissented from the majority’s holding that two insurers were financially responsible for the damages caused by a fractured storm pipe and subsequent flooding of a school. The judge believed that only one of the responsible party’s insurers had to pay for the property damage.

In Grange Mutual Casualty, et al. v. West Bend Mutual Ins., et al. No. 29A02-1008-PL-965, the two insurers disputed which policy was triggered after a school in which insured McCurdy Mechanical installed plumping, sewers, and drains was flooded due to a fractured storm drain pipe. At the time McCurdy performed the work on the school, it had a commercial general liability policy with West Bend Mutual Insurance. When the damaged pipe burst and caused the flooding in the school, Grange Mutual Casualty provided McCurdy’s CGL insurance. It was later discovered that the pipe was fractured by McCurdy sometime around spring of 2005, when West Bend's policy was active.

The two insurers jointly settled with the school’s insurance company for damages from the flood and then filed competing motions for summary judgment as to which insurer was responsible. The trial court denied Grange’s motion for summary judgment and granted West Bend’s motion for summary judgment.

The majority found that the parties incorrectly focused on the timing of the occurrences in the case and that they aren’t really relevant to the determination of coverage based on the insurance policies, which are very similar. What’s important is the timing of the property damage because the policies require that the damage occur during the policy period, wrote Judge Ezra Friedlander.

The majority held that in this case, it’s not an “either-or determination.” West Bend’s coverage was triggered by the original fracturing of the storm drain pipe which resulted in immediate damage to the pipe and subsequent flooding. They held that the policy covers all damages that flowed from the original damage, including the extensive flood damage. But Grange is also responsible for some damages, they held. Coverage under the Grange policy was triggered when the flooding occurred during its policy period, regardless of when the original negligence took place, wrote the judge. The majority remanded for the trial court to apportion damages accordingly.

Judge Melissa May agreed with the majority that West Bend’s policy covers all damages that flowed from the original damage, but disagreed that Grange’s policy also covers the flood damage at issue.

“There is nothing to ‘apportion.’ The majority is correct that the West Bend policy covers ‘all damages,’ and I would accordingly decline to hold there could be damages in addition to ‘all damages’ or that any such additional damages could be assigned on remand to Grange,” she wrote. “I believe ‘all’ means ‘all,’ and I would accordingly reverse and direct summary judgment for Grange.”

Judge May cited Parr v. Gonzalez, 669 N.W.2d 401 (Minn. Ct. App. 2003), to support her conclusion that the Grange policy isn’t implicated. Parr held that when damages arise from “discrete and identifiable events that occur within the policy period, the actual-injury trigger theory allows those policies on the risk at the point of initial damage to pay for all the damages that follow.”

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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