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. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues