ILNews

COA orders trial over 1 issue in contaminated development land suit

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals has ordered a trial on the issue of whether the known loss doctrine would bar coverage of an insurance policy held by the owner of land sold for a housing development that later was found to have been contaminated with toxic waste. A builder sued the landowner, claiming he knew of the potential contamination and failed to inform the builder.

George Kopetsky and Durabuilders, now KB Home Indiana Inc., entered into an agreement in 1998 where KB Home would purchase lots in a housing development being developed by Kopetsky. He indicated in the agreement that he was unaware of any contamination in Cedar Park at the time. KB Home became aware that some of the lots it had purchased contained contaminants from a nearby business and filed its lawsuit in 2007 against Kopetsky and those responsible for the contamination.

KB Home alleged that Kopetsky knew in 2002 some of the lots were contaminated but waited until 2004 to tell KB home of the problem. KB purchased more than 60 lots during that time.

Kopetsky’s commercial general liability insurance carrier, Indiana Insurance Co., in 2009 sought a declaration that it had no duty to defend or indemnify him in the lawsuit. The trial court ruled against the insurance company. His wife, Patricia, was substituted as a party after Kopetsy passed away in 2010.

The case, Indiana Insurance Company v. Patricia Kopetsky, and KB Home Indiana Inc., 49A02-1304-PL-340, brings up an issue of first impression. The policies preclude coverage for bodily injury or property damage for which the insured is obligated to pay damages by reason of the assumption of the liability in a contract or agreement. The judges agreed with Kopetsky that while he may be held liable for entering into the agreement and breaching it, this is not the same thing as assuming liability pursuant to it.

“Although our research has uncovered no Indiana case precisely on point, today we explicitly endorse the proposition that ‘assumed’ liability is liability originally incurred by a third party but then taken on by another,” Judge Cale Bradford wrote. “Today we join those jurisdictions who have held that contractual liability exclusions in CGL policies bar coverage not for liability incurred by a contract breach but, rather, for liability assumed from a third party, which seems to be the majority position by a wide margin.”

The judges held that KB Home successfully alleged “property damage” caused by an “occurrence” pursuant to the policies, and that the policies’ “expected and intended” and “contractual liability” exclusions do not work to bar coverage. But the designated evidence generates a question of fact as to whether the known loss doctrine would bar coverage. There is evidence showing that Kopetsky was aware of the contamination in Cedar Park before the effective dates of the first of his policies with Indiana Insurance.  The case is remanded for trial on the known loss doctrine issue.
 

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. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

  2. I agree. My husband has almost the exact same situation. Age states and all.

  3. Thanks Jim. We surprised ourselves with the first album, so we did a second one. We are releasing it 6/30/17 at the HiFi. The reviews so far are amazing! www.itsjustcraig.com Skope Mag: It’s Just Craig offers a warm intimacy with the tender folk of “Dark Corners”. Rather lovely in execution, It’s Just Craig opts for a full, rich sound. Quite ornate instrumentally, the songs unfurl with such grace and style. Everything about the album feels real and fully lived. By far the highlight of the album are the soft smooth reassuring vocals whose highly articulate lyrics have a dreamy quality to them. Stories emerge out of these small snapshots of reflective moments.... A wide variety of styles are utilized, with folk anchoring it but allowing for chamber pop, soundtrack work, and found electronics filtering their way into the mix. Without a word, It’s Just Craig sets the tone of the album with the warble of “Intro”. From there things get truly started with the hush of “Go”. Building up into a great structure, “Go” has a kindness to it. Organs glisten in the distance on the fragile textures of “Alone” whose light melody adds to the song’s gorgeousness. A wonderful bloom of color defines the spaciousness of “Captain”. Infectious grooves take hold on the otherworldly origins of “Goodnight” with precise drum work giving the song a jazzy feeling. Hazy to its very core is the tragedy of “Leaving Now”. By far the highlight of the album comes with the closing impassioned “Thirty-Nine” where many layers of sound work together possessing a poetic quality.

  4. Andrew, if what you report is true, then it certainly is newsworthy. If what you report is false, then it certainly is newsworthy. Any journalists reading along??? And that same Coordinator blew me up real good as well, even destroying evidence to get the ordered wetwork done. There is a story here, if any have the moxie to go for it. Search ADA here for just some of my experiences with the court's junk yard dog. https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert Yep, drive by shootings. The lawyers of the Old Dominion got that right. Career executions lacking any real semblance of due process. It is the ISC way ... under the bad shepard's leadership ... and a compliant, silent, boot-licking fifth estate.

  5. Journalism may just be asleep. I pray this editorial is more than just a passing toss and turn. Indiana's old boy system of ruling over attorneys is cultish. Unmask them oh guardians of democracy.

ADVERTISEMENT