ILNews

COA affirms Vectren, Citizens lack of standing

Jennifer Nelson
January 1, 2007
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The Indiana Court of Appeals affirmed the dismissal of a breach-of-contract complaint filed by Vectren Energy and Citizens By-products Coal Co. against Executive Risk Specialty Insurance, finding the two companies never had standing to file the complaint because they are trying to fix alleged wrongdoings done to another company, rather than themselves.

In Vectren Energy Marketing & Service, Inc., et al. v. Executive Risk Specialty Insurance Co., ProLiance Energy, LLC, et al., 82A05-0702-CV-115, Vectren and Citizens appealed the trial court's order granting Executive Risk Specialty Insurance Company's (ERISC) motion to dismiss its complaint pursuant to Indiana Trial Rule 12(B)(6). Vectren and Citizens argue they have standing to pursue the complaint, their claim is not barred by collateral estoppel, and they have sufficiently pleaded a breach of contract claim against ERISC to withstand the motion to dismiss.

Vectren and Citizens are the only two members of ProLiance, an energy trading company. All three companies have a policy through ERSIC. The City of Huntsville, Ala., filed a complaint against ProLiance and two of its employees, and a jury found ProLiance and the two employees liable for violations, fraud, breach of contract, and other issues. Based on the finding of the jury and the final judgment of $32 million in favor of the city, ERSIC denied coverage to ProLiance and the employees.

ProLiance's policy states that no coverage will be available for loss when a claim was brought by knowing, intentional, dishonest, fraudulent, or criminal wrongful acts by the insured.

ERISC filed a complaint against ProLiance and the two employees in the U.S. District Court for the Southern District of Indiana. In response, Vectren and Citizens filed a motion to intervene in the federal lawsuit to protect their purported interests. Vectren and Citizens were not named as defendants in the original lawsuit by Huntsville, they did not attempt to intervene to protect their interests in the policy, nor was any judgment entered against them.

ERISC filed a motion to dismiss Vectren's complaint stating the two companies didn't have standing to assert any claims against ERISC; the trial court dismissed Vectren and Citizen's complaint.

Chief Judge John Baker wrote in the opinion that the court found no authority establishing that Vectren and Citizen's have standing to pursue a breach-of-contract claim against ERISC based on contractual duties owed to ProLiance. Vectren and Citizens did not suffer a loss as defined by the policy as a result of the City of Huntsville's lawsuit against ProLiance, nor has either company received a claim and incurred damages, judgments, or settlements as a result of a claim. Vectren and Citizens have no personal stake in the outcome of the litigation between ERISC and ProLiance because "any loss which Vectren and Citizens will purportedly suffer would merely be derivative as a result of their relationship to ProLiance."
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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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