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
2015 Distinguished Barrister &
Up and Coming Lawyer Reception

Tuesday, May 5, 2015 • 4:30 - 7:00 pm
Learn More


ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Sociologist of religion Peter Berger once said that the US is a “nation of Indians ruled by Swedes.” He meant an irreligious elite ruling a religious people, as that Sweden is the world’s least religious country and India the most religious. The idea is that American social elites tend to be much less religious than just about everyone else in the country. If this is true, it helps explain the controversy raking Indiana over Hollywood, San Fran, NYC, academia and downtown Indy hot coals. Nevermind logic, nevermind it is just the 1993 fed bill did, forget the Founders, abandon of historic dedication to religious liberty. The Swedes rule. You cannot argue with elitists. They have the power, they will use the power, sit down and shut up or feel the power. I know firsthand, having been dealt blows from the elite's high and mighty hands often as a mere religious plebe.

  2. I need helping gaining custody of my 5 and 1 year old from my alcoholic girlfriend. This should be an easy case for any lawyer to win... I've just never had the courage to take her that far. She has a record of public intox and other things. She has no job and no where to live othe than with me. But after 5 years of trying to help her with her bad habit, she has put our kids in danger by driving after drinking with them... She got detained yesterday and the police chief released my kids to me from the police station. I live paycheck to paycheck and Im under alot of stress dealing with this situation. Can anyone please help?

  3. The more a state tries to force people to associate, who don't like each other and simply want to lead separate lives, the more that state invalidates itself....... This conflict has shown clearly that the advocates of "tolerance" are themselves intolerant, the advocates of "diversity" intend to inflict themselves on an unwilling majority by force if necessary, until that people complies and relents and allows itself to be made homogenous with the politically correct preferences of the diversity-lobbies. Let's clearly understand, this is force versus force and democracy has nothing to do with this. Democracy is a false god in the first place, even if it is a valid ideal for politics, but it is becoming ever more just an empty slogan that just suckers a bunch of cattle into paying their taxes and volunteering for stupid wars.

  4. I would like to discuss a commercial litigation case. If you handle such cases, respond for more details.

  5. Great analysis, Elizabeth. Thank you for demonstrating that abortion leads, in logic and acceptance of practice, directly to infanticide. Women of the world unite, you have only your offspring to lose!

ADVERTISEMENT