ILNews

High court denies rehearing

Back to TopCommentsE-mailPrintBookmark and Share

A split Indiana Supreme Court has denied rehearing a case involving faulty workmanship being covered under a commercial general liability policy.

On Dec. 17, Justices Brent Dickson, Robert Rucker, and Steven David denied Continental Casualty Company’s petition for rehearing. In October, the justices were divided on whether an “occurrence” under a CGL covers an insured contract for faulty workmanship of its subcontractors. Justices Dickson, Rucker, and Theodore Boehm reversed the trial court ruling in favor of the insurers on grounds that there wasn’t property damage and thus there was no “occurrence” or “property damage.”

The majority aligned themselves with the jurisdictions that held improper or faulty workmanship does constitute an accident as long as the resulting damage is an event that occurs without expectation or foresight. They remanded for further proceedings because none of the parties’ Trial Rule 56 materials addressed the question of whether the faulty workmanship was the product of intentional or unintentional conduct, so the trial court reached no conclusion on that. If the subcontractor’s defective work was done intentionally instead of “without intention or design” then it is not an accident, the majority decided.

Chief Justice Randall T. Shepard and Justice Frank Sullivan dissented from the October ruling and also dissented from the denial to grant Continental’s petition for rehearing. In his three-page dissent, Justice Sullivan reiterated his belief that the damage isn’t covered under a CGL policy. He pointed to a 6th Circuit Court of Appeals case, Cincinnati Insurance Co. v. Beazer Homes Investments, LLC 594 F.3d 441 (6th Circ. 2010), in which that court addressed this exact issue of Indiana law. He believed the Circuit Court more accurately analyzed Indiana law on the subject than the Supreme Court’s opinion. The 6th Circuit Court of Appeals concluded that because it is neither “property damage” nor an “occurrence”, faulty workmanship causing damage to the insured property isn’t covered by CGL polices under Indiana law.

Justice Sullivan and Chief Justice Shepard, who joined him in the dissent, agreed with the alternatives available to provide appropriate recourse to general contractors who are faced with damage from faulty workmanship, including requiring performance bonds.

Also on Dec. 17, the justices issued an opinion on rehearing from Indiana Insurance in the same matter. They granted the rehearing to address the timeliness of Sheehan Construction Company’s notice to Indiana Insurance. Neither the Indiana Court of Appeals nor the Supreme Court addressed this issue on appeal. The justices unanimously affirmed summary judgment in favor of the insurer on this matter.

“In this case Sheehan conceded it did not give Indiana Insurance timely notice of Sheehan’s claims under the CGL policy. Because prejudice to the insurer was therefore presumed, Indiana Insurance carried its initial burden of demonstrating it had no liability to Sheehan under the policy of insurance. Sheehan has not directed this Court to any evidence it presented to the trial court rebutting the presumption of prejudice,” wrote Justice Rucker.

In all other respects, the original opinion was affirmed.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

ADVERTISEMENT