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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. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  2. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

  3. I whole-heartedly agree with Doug Church's comment, above. Indiana lawyers were especially fortunate to benefit from Tom Pyrz' leadership and foresight at a time when there has been unprecedented change in the legal profession. Consider how dramatically computer technology and its role in the practice of law have changed over the last 25 years. The impact of the great recession of 2008 dramatically changed the composition and structure of law firms across the country. Economic pressures altered what had long been a routine, robust annual recruitment process for law students and recent law school graduates. That has, in turn, impacted law school enrollment across the country, placing upward pressure on law school tuition. The internet continues to drive significant changes in the provision of legal services in both public and private sectors. The ISBA has worked to make quality legal representation accessible and affordable for all who need it and to raise general public understanding of Indiana laws and procedures. How difficult it would have been to tackle each of these issues without Tom's leadership. Tom has set the tone for positive change at the ISBA to meet the evolving practice needs of lawyers of all backgrounds and ages. He has led the organization with vision, patience, flexibility, commitment, thoughtfulness & even humor. He will, indeed, be a tough act to follow. Thank you, Tom, for all you've done and all the energy you've invested in making the ISBA an excellent, progressive, highly responsive, all-inclusive, respectful & respected professional association during his tenure there.

  4. The is putting restrictions on vaping just because big tobacco companies are losing money. http://vapingisthefuture.com

  5. Oh, and I should add ... the stigma JLAP attaches lasts forever. As my documents show, I had good reason to reject the many conflicted diagnoses for not thinking like the state wanted me to. BUT when I resisted and raised constitutional and even ADA "regarded as" arguments I was then denied licensed in Indiana for LIFE. As in until death does us part. Evidence in comments here: http://www.theindianalawyer.com/scotus-denies-cert-to-kansas-attorney-seeking-to-practice-in-indiana/PARAMS/article/40522 Resistance is futile, comrades.

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