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Court rules in favor of insurer in environmental cleanup dispute

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A release executed between a chemical manufacturing business and its insurer that relieved the insurer from claims or demands related to remediation was unambiguous and covered all policies held by the company, not just the primary liability ones, the Indiana Court of Appeals ruled.

United States Fidelity and Guaranty Co. was the general liability insurer of Warsaw Chemical Company when Warsaw learned of environmental contamination. Warsaw sought reimbursement for the remediation pursuant to its primary and excess policies. The insurer denied coverage under primary and excess liability policies. In 1992, the two entered into the release in exchange for $25,000.

Fifteen years later, Warsaw sued, arguing that the release only covered primary liability polices and there should be coverage under the excess policies. The trial court ultimately entered judgment in favor of Warsaw for $417,953.

At issue in United States Fidelity and Guaranty Company v. Warsaw Chemical Company, Inc., 49A04-1203-CT-97, is the language in the 1992 release and the distinction between recitals – or “whereas” clauses – and operative language in contracts. The release stated that USF&G would be forever discharged “from any further claims … .” The Court of Appeals held under the binding precedent of Irwin’s Bank v. Fletcher, etc. Trust Co. Rec (1924) 195 Ind. 699, 145 N.E. 869, 146 N.E. 869, and Kerfoot v. Kessener (1949) 227 Ind. 58, 84 N.E.2d 190, the recitals referencing only the primary policies may not be used to interpret the unambiguous operative language releasing the insurer from any further claims.

The judges rejected Warsaw’s claim that those cases are no longer good law based on OEC-Diasonics Inc. v. Major, 674 N.E.2d 1312 (Ind. 1996).

“Recital language that arguably suggests that the release applied to only some of the insurance policies Warsaw had with USF&G does not trump this clear language. Because the Release covered the excess policies, the trial court erred in denying USF&G’s summary judgment motion on this point. We therefore reverse the judgment of the trial court and remand for entry of summary judgment in favor of USF&G,” Judge Cale Bradford wrote.

 

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  1. Andrew, you are a whistleblower against an ideologically corrupt system that is also an old boys network ... Including old gals .... You are a huge threat to them. Thieves, liars, miscreants they understand, identify with, coddle. But whistleblowers must go to the stake. Burn well my friend, burn brightly, tyger.

  2. VSB dismissed the reciprocal discipline based on what Indiana did to me. Here we have an attorney actually breaking ethical rules, dishonest behavior, and only getting a reprimand. I advocated that this supreme court stop discriminating against me and others based on disability, and I am SUSPENDED 180 days. Time to take out the checkbook and stop the arrogant cheating to hurt me and retaliate against my good faith efforts to stop the discrimination of this Court. www.andrewstraw.org www.andrewstraw.net

  3. http://www.andrewstraw.org http://www.andrewstraw.net If another state believes by "Clear and convincing evidence" standard that Indiana's discipline was not valid and dismissed it, it is time for Curtis Hill to advise his clients to get out the checkbook. Discrimination time is over.

  4. Congrats Andrew, your street cred just shot up. As for me ... I am now an administrative law judge in Kansas, commissioned by the Governor to enforce due process rights against overreaching government agents. That after being banished for life from the Indiana bar for attempting to do the same as a mere whistleblowing bar applicant. The myth of one lowly peasant with the constitution does not play well in the Hoosier state. As for what our experiences have in common, I have good reason to believe that the same ADA Coordinator who took you out was working my file since 2007, when the former chief justice hired the same, likely to "take out the politically incorrect trash" like me. My own dealings with that powerful bureaucrat and some rather astounding actions .. actions that would make most state courts blush ... actions blessed in full by the Ind.S.Ct ... here: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  5. I presented my defense against discipline to the Virginia State Bar this morning and the 26-member Board of Discipline 100% rejected what Indiana has done to me, including what Ahler did. Discipline DISMISSED.

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