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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. The voices of the prophets are more on blogs than subway walls these days, Dawn. Here is the voice of one calling out in the wilderness ... against a corrupted judiciary ... that remains corrupt a decade and a half later ... due to, so sadly, the acquiescence of good judges unwilling to shake the forest ... for fear that is not faith .. http://www.ogdenonpolitics.com/2013/09/prof-alan-dershowitz-on-indiana.html

  2. So I purchased a vehicle cash from the lot on West Washington in Feb 2017. Since then I found it the vehicle had been declared a total loss and had sat in a salvage yard due to fire. My title does not show any of that. I also have had to put thousands of dollars into repairs because it was not a solid vehicle like they stated. I need to find out how to contact the lawyers on this lawsuit.

  3. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  4. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  5. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

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