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Judge concerned insurance ruling has ‘broad-range consequences’ for future cases

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The Indiana Court of Appeals issued a lengthy opinion Thursday dealing with an insurance coverage dispute between a company headquartered in Indiana and its insurers regarding claims from Taiwanese workers that they were made ill from contaminants from a manufacturing plant.

Former factory workers and their heirs filed a class-action lawsuit in Taiwan against Thomson Consumer Electronics Television Taiwan Ltd., which owned and operated the manufacturing plant from the late 1980s to 1992. The workers alleged they were exposed to toxic solvents while working at the plant and living in dormitories near the plant. Less than 1 percent of the company’s stock is owned by Thomson Inc. n/k/a Technicolor USA Inc., which is headquartered in Indiana. Thomson was named as a defendant based on theories of corporate veil piercing and joint liability.

In July 2008, Thomson notified its primary insurers about the Taiwan class action. Three days later, Thomson filed its original declaratory judgment complaint against its primary and umbrella insurers, which included XL Insurance America Inc. and Century Indemnity Co. The trial court ruled XL and Century have a duty to defend Thomson.

A point of disagreement among the appeals judges in Thomson Inc. n/k/a Technicolor USA, Inc. v. Insurance Company of North America n/k/a Century Indemnity Company, et al., and XL Insurance America, et al., 49A05-1109-PL-470 was over the proration terms in XL’s and Century’s policies. The trial court, citing Allstate Ins. Co v. Dana, 759 N.E.2d 1049, 1058 (Ind. 2001), referred to as Dana II, found no clear or precise proration terms, so coverage is for all sums related to the insurance subject to policy limits. The policies in the instant case used “those sums” instead of “all sums.” Judges Terry Crone and Cale Bradford cited a case out of the U.S. District Court for the Southern District of Indiana that contained similar policy language and held that the language at issue here is not subject to Dana II.

“We believe that the trial court will be best situated to select (and customize, if necessary) the fairest method of apportioning liability among the insurers in light of the factual complexities of the case at the appropriate time. And for that reason, we believe that the trial court should be afforded broad discretion in selecting and applying an apportionment method,” Crone wrote in the 83-page majority decision.

Chief Judge Nancy Vaidik dissented on this issue, writing that she agrees with Dana II and believes the language of the policies at issue is not specific enough to demand proration of damages.

“As Thomson points out in its brief, it will be difficult for a court to determine exactly when and in what amount damages occurred. The majority answers this by giving the trial-court judge two main tests to decide upon and ‘broad discretion in selecting and applying an apportionment method.’ This is unfair to the insurance companies, Thomson, and its employees,” she wrote.

“The risk that each of the parties calculated in offering and buying insurance is as uncertain post injury as ever. The majority opinion also has broad-range consequences for future long-tail coverage cases as the risk that each future insurer and insured calculate up front are not subject to change based upon the vicissitudes of the 400 trial-court judges who have received little or no direction from us.”

She agreed with her colleagues on all other issues, including the trial court’s finding of two “occurrences” under the XL and Century policies and that Thomson must satisfy the deductible for each occurrence for certain policies issued from 2000 to 2005.

The case is remanded for further proceedings.
 

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  1. Not enough copperheads here to care anymore, is my guess. Otherwise, a totally pointless gesture. ... Oh wait: was this done because somebody want to avoid bad press - or was it that some weak kneed officials cravenly fear "protest" violence by "urban youths.."

  2. Should be beat this rap, I would not recommend lion hunting in Zimbabwe to celebrate.

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  5. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

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