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. Major social engineering imposed by judicial order well in advance of democratic change, has been the story of the whole post ww2 period. Contraception, desegregation, abortion, gay marriage: all rammed down the throats of Americans who didn't vote to change existing laws on any such thing, by the unelected lifetime tenure Supreme court heirarchs. Maybe people came to accept those things once imposed upon them, but, that's accommodation not acceptance; and surely not democracy. So let's quit lying to the kids telling them this is a democracy. Some sort of oligarchy, but no democracy that's for sure, and it never was. A bourgeois republic from day one.

  2. JD Massur, yes, brings to mind a similar stand at a Texas Mission in 1836. Or Vladivostok in 1918. As you seemingly gloat, to the victors go the spoils ... let the looting begin, right?

  3. I always wondered why high fence deer hunting was frowned upon? I guess you need to keep the population steady. If you don't, no one can enjoy hunting! Thanks for the post! Fence

  4. Whether you support "gay marriage" or not is not the issue. The issue is whether the SCOTUS can extract from an unmentionable somewhere the notion that the Constitution forbids government "interference" in the "right" to marry. Just imagine time-traveling to Philadelphia in 1787. Ask James Madison if the document he and his fellows just wrote allowed him- or forbade government to "interfere" with- his "right" to marry George Washington? He would have immediately- and justly- summoned the Sergeant-at-Arms to throw your sorry self out into the street. Far from being a day of liberation, this is a day of capitulation by the Rule of Law to the Rule of What's Happening Now.

  5. With today's ruling, AG Zoeller's arguments in the cases of Obamacare and Same-sex Marriage can be relegated to the ash heap of history. 0-fer

ADVERTISEMENT