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High court rules in favor of insurers in silica case

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Companies that owned the assets of an industrial blast machine can't seek coverage from the insurers who issued liability policies for previous owners of the machine, the Indiana Supreme Court ruled yesterday.

At issue in Travelers Casualty and Surety Co., et al. v. United States Filter Corp., et al., No. 49S02-0712-CV-596, is whether or not United States Filter Corp. and other companies that at one time held the assets of the Wheelabrator blast machine had the liability insurance coverage rights passed to them through the same corporate transactions that brought them the blast machine assets.

The trial court agreed with U.S. Filter and the other companies that the rights passed to the current holders of the assets, granting them summary judgment.

But the Supreme Court reversed the trial court and directed judgment for the insurers. Each of the insurance policies involved in this case contained a provision barring assignment of the policy without the insurer's consent. Even though the company holding the assets to the blast machine may have written an insurance agreement to transfer the policy, the insurers never consented to make the assignment valid, wrote Chief Justice Randall T. Shepard.

The asset holders of the blast machine argue that certain claims under the policies did transfer to them as choses in action despite consent-to-agreement provisions. Courts have often recognized an exception to the enforcement of consent-to-agreement clauses for assignments made after a loss has occurred, wrote the chief justice, because after a loss occurs, the indemnity policy is a vested claim against the insurer that can be freely assigned or sold like any other chose in action.

Under the occurrence-based comprehensive general liability policies, the question in the instant case is whether occurred - but not yet reported - losses form the basis of choses in action that would transfer the insurance policies.

The high court read the consent-to-assignment provisions in the policies to apply to coverage transfers of any scope "because it is hard to see a practical difference between the assignment of the entire policy and the assignment of a single claim," wrote the chief justice. A chose in action is only transferable in these circumstances if it is assigned at a moment when the policyholder could have brought its own action against the insurer for coverage; under the liability policies in this case, that moment doesn't happen until a claim is made against the insured. None of the parties in this case contend anyone knew of the alleged injuries from the silica exposure when the transactions took place transferring the blast machine's assets, wrote Chief Justice Shepard. As a result, the companies weren't entitled to coverage under their predecessors' insurance policies.

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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