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Court affirms judgments in pollution case, remands for determination of credit due

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The Indiana Court of Appeals found no errors in a trial court’s ruling in a dispute over insurance coverage to clean up a pollution spill at a westside Indianapolis business, but it sent the case back to the trial court for a determination of credit due an insurer.

In State Automobile Ins. Co., Meridian Security Ins. Co., and Indiana Farmers Mutual Ins. Co. v. DMY Realty Co., LLP and Commerce Realty, LLC, 49A05-1109-PL-486, the appellate court unanimously affirmed the trial court’s order granting summary judgment in favor of DMY and denying summary judgment in favor of State Auto, which had agreed to indemnify DMY, the owner of a retail building in the 7200 block of West 10th Street that once housed a dry cleaning business.

The court said that a recent Indiana Supreme Court decision, State Auto. Mut. Ins. Co. v. Flexdar, Inc., 964 N.E.2d 845 (Ind. 13 2012) spoke to whether pollution exclusions are ambiguous. “Flexdar is precisely on point on this issue, and consequently we conclude that the pollution exclusions and endorsements contained in DMY’s insurance policies with State Auto are ambiguous. Thus State Auto may not deny DMY the coverage it seeks based upon such language,” Judge Elaine Brown wrote for the unanimous panel.

But State Auto prevailed on another argument: that it was entitled to credit on compensation it paid when another insurer had already indemnified DMY, which reached a settlement with Indiana Farmers.

“We conclude that remand is warranted for the trial court to review any settlement agreement between DMY and Indiana Farmers and consider any valid contribution or credit issues,” due to State Auto.  
   
 

 

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  1. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

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