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. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  2. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

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  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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