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Judges rule on Evansville environmental coverage case

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The Indiana Court of Appeals has determined a Marion County judge properly granted summary judgment in favor of a group of insurance companies because the city of Evansville was seeking coverage for projects aimed at preventing future sewer discharges, rather than remediating past discharges, which wouldn’t be covered by the policies.

The case involves Evansville’s century-old sewer system that partially drained into local waterways and led to pollution discharge permit disagreements in 2005 with the Environmental Protection Agency and Indiana Departmental of Environmental Management. The city sued in 2007 seeking declaratory judgment against some of its insurers that they must provide coverage under the policies. The trial court eventually concluded the insurance policies at issue did not provide any coverage for the plaintiffs in the alleged liability, including fines and penalties as a result of the government’s actions against the city.

In analyzing the case, the appellate judges relied on the Indiana Supreme Court’s decision in Cinergy Corp. v. Associated Elec. & Gas Ins. Services, Inc., 865 N.E.2d 571 (Ind. 2007), known as “Cinergy I”, and the line of subsequent Cinergy cases from the Court of Appeals in the years following.

In City of Evansville and Evansville Water and Sewer Utility v. United States Fidelity and Guaranty Company, et al., No. 49A02-1104-PL-375, Judge Michael Barnes wrote that Cinergy I governs this action and precludes the city’s claim as a matter of law. The judges rejected and found “immaterial” Evansville’s claim that Cinergy I is distinguishable from this current case.

“The holding of Cinergy I is that prevention of future environmental harm, rather than remediation of past contamination, is not an ‘occurrence’ under insurance policies, and the policies at issue here contain similar provisions,” Barnes wrote. “The differences between the instant action and Cinergy I do not impact that ultimate holding.”
 

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  1. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  2. wow is this a bunch of bs! i know the facts!

  3. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  4. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  5. It's a capital offense...one for you Latin scholars..

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