ILNews

COA affirms judgment in coverage dispute between insurance companies

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals affirmed a trial court’s judgment regarding indemnification clauses and coverage under insurance policies. The issue came before the trial court after a worker sought compensation for severe injuries he sustained when he was electrocuted on the construction site of a Wal-Mart in Boone County.

Wal-Mart hired MacDougall Pierce Construction Inc. as the general contractor on the construction. K.B. Electric was a subcontractor on the site and it employed James Wethington. He was catastrophically injured while working at the project, alleging Wal-Mart and MacDougall were negligent by choosing to leave the power on while he worked in order to save time on completion of the building.

MacDougall had insurance through Amerisure; K.B. Electric had insurance through West Bend. Amerisure declined to participate in the defense efforts. The trial court granted MacDougall’s and Amerisure’s motions, finding West Bend had a duty to defend/indemnify Wal-Mart, MacDougall and K.B. Electric.

“We reject West Bend’s argument that the inclusion of language in Paragraph 4 and omission of that language in Paragraph 21 creates an ambiguity in the Subcontract such that West Bend is not primarily responsible for providing coverage for Wethington’s claims. What is clear from the wording of the Subcontract is that K.B. Electric was required to indemnify Wal-Mart and MacDougall, and that West Bend, as K.B. Electric’s insurer, was required to provide coverage if the loss was a covered loss,” Judge James Kirsch wrote in West Bend Mutual Insurance Company and K.B. Electric, LLC v. MacDougal Pierce Construction, Inc., Amerisure Insurance Company, et al., 06A01-1304-CT-162.  

The judges also disagreed with West Bend’s contention that the trial court’s decision on the indemnification issue was premature.

“The parties’ rights and liabilities to each other were outlined contractually by the terms of indemnification,” he wrote. “Once that determination was made, then the insurance coverage issues could be resolved. Thus, the trial court’s decision on indemnification was not premature, but in fact, necessary to prevent the hazards of circular litigation.

The subcontract K.B. Electric entered into with MacDougall explicitly referred to the prime contract MacDougall had with Wal-Mart and other documents, incorporating their terms into the subcontract. That K.B. Electric obtained umbrella coverage from West Bend further evinces the understanding that K.B. Electric was required to do just that, the court held.  
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. 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

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

ADVERTISEMENT