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COA notes Indiana law would have changed outcome of environmental dispute

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Using California law, the Indiana Court of Appeals ruled that an insurance company does not have to pay for an environmental cleanup, but the court noted it did not agree with the position of the Golden State and it would have ruled differently if Indiana law had been applicable.

The Court of Appeals reversed the order of the trial court granting summary judgment in favor of Technicolor USA, Inc. and remanded with instructions to grant summary judgment in favor of Employers Surplus Lines Insurance Co.

Judge John Baker dissented.

At issue in Northern Assurance Co. of American, Successor in Interest to Certain Liabilities of Employers Surplus Lines Ins. Co. v. Thomson, Inc., k/n/a Technicolor, USA, Inc., Technicolor Inc/Technicolor Limited, 4904-1208-PL-400, was whether Indiana or California law applied.

Technicolor was seeking coverage for environmental cleanup at three sites, two of which were located in California. Its connection to Indiana comes through Thomson, Inc., a corporation with ties to Indiana that acquired Technicolor assets in 2000.

Eventually, the film company brought suit against ESLIC, claiming that under Indiana law some of the environmental spills happened during the time that ESLIC’s policies were in place.

ESLIC argued that California law should apply when interpreting its policies and that under California law there was no coverage.

In a previous environmental dispute, the COA issued a summary judgment in favor of the insurer. The appeals court ruled in Thomson Inc. v. Continental Cas. Co. 982 N.E.2d 4, 6 (Ind. Ct. App. 2012), that under California law, the umbrella policy “damages” were limited to those that came from courtroom litigation and did not provide coverage for environmental contamination.

On the basis of the previous decision, the COA agreed with ESLIC. The court pointed out that most of the polluted sites are in California and all of the ESLIC policies were mailed to Technicolor’s California address.

Still the majority highlighted its opposition to the California law.

“We note here that we do not agree with the position California law takes on this matter,” Judge Paul Mathias wrote. “In fact, we agree with the arguments Technicolor made at oral argument that it is a waste of resources to require an insured to fight an administrative order in court in order to receive coverage under an insurance policy. Indeed, this court has formally come to this conclusion when applying Indiana law.”

In his dissent, Baker agrees with the majority to apply California law but disputes how the law is being interpreted. He argued that in light of the Golden State’s leadership on environmental issues and the opinions from its courts, California would likely apply its law to have insurance companies pay for cleanup.

“…I believe that if the California Supreme Court was presented with this case at this time, it would no longer permit ill-advised precedent from giving its environmental law the full and complete effect it was intended to have,” Baker wrote.
 

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  1. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  5. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

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