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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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