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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. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  2. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  3. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  4. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

  5. Why do so many lawyers get away with lying in court, Jamie Yoak?

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