COA: primary before true excess policies

Jennifer Nelson
January 1, 2008
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Indiana's "Lease Statute" can't be used to determine the priority of insurance coverage between a primary insurance policy and true excess policies, ruled the Indiana Court of Appeals today in a case of first impression.

Old Republic Insurance appealed the trial court's decision in Old Republic Insurance Co. v. RLI Insurance Co., et al., No. 49A04-0709-CV-523, which determined Old Republic's policy had higher priority over other excess policies and that the Lease Statute didn't allow for ranking different types of insurance policies.

Old Republic provided primary business auto insurance for the Kroger Co., but under certain circumstances, it would provide excess insurance.

Michael Laux drove as an independent contractor for Quickway Express Inc. and owned his own tractor-trailer. While hauling a Kroger trailer, he was involved in an accident that killed a boy and seriously injured his mother. The mother filed suit against Laux and Quickway, alleging negligence and wrongful death. Quickway maintained several excess insurance policies and one primary insurance policy.

Old Republic wanted a judicial determination of the priority of coverage afforded to Laux and Quickway; the court found Old Republic to be a primary policy that provides excess coverage only by operation of the policy's other insurance provision.

The court ranked the priority of coverage, ranking Quickway's primary policy first, then Old Republic, and then the excess insurance policies.

Old Republic appealed, arguing Indiana Code Section 27-8-9-9, Indiana's "Lease Statute," should apply to determine the priority of coverage between primary policies and true excess policies. Old Republic believed its coverage should have been considered excess instead of primary.

The Court of Appeals turned to its ruling in Monroe Guaranty Insurance Co. v. Langreck, 816 N.E.2d 485, 492 (Ind. Ct. App. 2004). In that case, the court determined that under Indiana's Owner Statute, a true excess policy is secondary in priority to a primary insurance policy, even if the primary tries to make itself excess. In this case, the court found Indiana's Lease Statute is in pari materia with the Owner's Statute and applies only to determine priority between insurance policies providing the same level of coverage, wrote Judge Edward Najam.

As such, the Lease Statute can't prioritize the excess insurer's policies ahead of Old Republic's. The Court of Appeals affirmed the denial of Old Republic's motion for summary judgment and the grant of summary judgment in favor of the excess insurers.

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  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.