ILNews

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. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  2. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  3. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  4. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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