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Judge concerned insurance ruling has ‘broad-range consequences’ for future cases

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The Indiana Court of Appeals issued a lengthy opinion Thursday dealing with an insurance coverage dispute between a company headquartered in Indiana and its insurers regarding claims from Taiwanese workers that they were made ill from contaminants from a manufacturing plant.

Former factory workers and their heirs filed a class-action lawsuit in Taiwan against Thomson Consumer Electronics Television Taiwan Ltd., which owned and operated the manufacturing plant from the late 1980s to 1992. The workers alleged they were exposed to toxic solvents while working at the plant and living in dormitories near the plant. Less than 1 percent of the company’s stock is owned by Thomson Inc. n/k/a Technicolor USA Inc., which is headquartered in Indiana. Thomson was named as a defendant based on theories of corporate veil piercing and joint liability.

In July 2008, Thomson notified its primary insurers about the Taiwan class action. Three days later, Thomson filed its original declaratory judgment complaint against its primary and umbrella insurers, which included XL Insurance America Inc. and Century Indemnity Co. The trial court ruled XL and Century have a duty to defend Thomson.

A point of disagreement among the appeals judges in Thomson Inc. n/k/a Technicolor USA, Inc. v. Insurance Company of North America n/k/a Century Indemnity Company, et al., and XL Insurance America, et al., 49A05-1109-PL-470 was over the proration terms in XL’s and Century’s policies. The trial court, citing Allstate Ins. Co v. Dana, 759 N.E.2d 1049, 1058 (Ind. 2001), referred to as Dana II, found no clear or precise proration terms, so coverage is for all sums related to the insurance subject to policy limits. The policies in the instant case used “those sums” instead of “all sums.” Judges Terry Crone and Cale Bradford cited a case out of the U.S. District Court for the Southern District of Indiana that contained similar policy language and held that the language at issue here is not subject to Dana II.

“We believe that the trial court will be best situated to select (and customize, if necessary) the fairest method of apportioning liability among the insurers in light of the factual complexities of the case at the appropriate time. And for that reason, we believe that the trial court should be afforded broad discretion in selecting and applying an apportionment method,” Crone wrote in the 83-page majority decision.

Chief Judge Nancy Vaidik dissented on this issue, writing that she agrees with Dana II and believes the language of the policies at issue is not specific enough to demand proration of damages.

“As Thomson points out in its brief, it will be difficult for a court to determine exactly when and in what amount damages occurred. The majority answers this by giving the trial-court judge two main tests to decide upon and ‘broad discretion in selecting and applying an apportionment method.’ This is unfair to the insurance companies, Thomson, and its employees,” she wrote.

“The risk that each of the parties calculated in offering and buying insurance is as uncertain post injury as ever. The majority opinion also has broad-range consequences for future long-tail coverage cases as the risk that each future insurer and insured calculate up front are not subject to change based upon the vicissitudes of the 400 trial-court judges who have received little or no direction from us.”

She agreed with her colleagues on all other issues, including the trial court’s finding of two “occurrences” under the XL and Century policies and that Thomson must satisfy the deductible for each occurrence for certain policies issued from 2000 to 2005.

The case is remanded for further proceedings.
 

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  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?

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