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Court affirms insurer must cover environmental cleanup costs

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The Indiana Court of Appeals affirmed an order that an insurer pay post-notice costs of nearly $34,000 to its insured in an environmental cleanup in Mooresville.

Majestic made concrete blocks in Mooresville and installed a large underground storage tank and dispensing pumps to provide diesel fuel for its delivery vehicles. When it decided to remove the tank, a test in December 1997 revealed the samples were potentially contaminated. Majestic bought a commercial general liability policy from State Auto for one year that began Jan. 1, 1998. Majestic learned in mid-January that the site is contaminated. The Indiana Department of Environmental Management didn’t order a site investigation until 2006; Majestic filed its claim with State Auto in 2009 for coverage of the cleanup costs.

State Auto denied the claim based on the “known loss” and “late notice.” The trial court found the coverage under the policy was not barred by the known loss or voluntary payment provisions and coverage was for post-notice costs only. Majestic also got prejudgment interest on the $33,678.85 costs starting Oct. 11, 2011.

Majestic also received reimbursement of 91 percent of its reimbursable costs from IDEM’s Excess Liability Trust Fund, minus the ELTF’s $35,000 deductible.

In Meridian Mutual Insurance Company, n/k/a State Automobile Mutual Insurance Company v. Majestic Block & Supply, Inc., n/k/a Tutewiler Corporation, 49A05-1210-PL-533, the COA found Majestic did not have actual knowledge that a loss had occurred in order to prevent State Auto from covering some of the cleanup. When it purchased the policy, testing results had not been received. Nor is the recovery barred by the late notice doctrine, the judges held, citing Dreaded Inc. v. St. Paul Guardian Insurance Co., 904 N.E.2d 1267, 1273 (Ind. 2009). The order to pay only post-notice costs was appropriate as was prejudgment interest.

The COA also rejected State Auto’s claim that Majestic received a double recovery.

“We decline to reverse based on a characterization of the payments from the ELTF or Majestic’s responsibility for its deductible amount as pre-notice or post-notice. The ELTF is not an insurance contract pursuant to which the date of notice might be determinative of coverage. Rather, it was established to, among other things, provide ‘a source of money to satisfy liabilities incurred by owners and operators of underground petroleum storage tanks under IC 13-23-13-8 for corrective action,’” Judge Melissa May wrote. “State Auto cannot avoid coverage for the ELTF deductible amount by assigning ELTF funds to a period before its policy took effect.”

The judges declined to award attorney fees to Majestic.

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  1. I will continue to pray that God keeps giving you the strength and courage to keep fighting for what is right and just so you are aware, you are an inspiration to those that are feeling weak and helpless as they are trying to figure out why evil keeps winning. God Bless.....

  2. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  3. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  4. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  5. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

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