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COA affirms judgment in coverage dispute between insurance companies

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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.  
 

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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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