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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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