Judges split on whether 2 insurers must pay for damage

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An Indiana Court of Appeals judge dissented from the majority’s holding that two insurers were financially responsible for the damages caused by a fractured storm pipe and subsequent flooding of a school. The judge believed that only one of the responsible party’s insurers had to pay for the property damage.

In Grange Mutual Casualty, et al. v. West Bend Mutual Ins., et al. No. 29A02-1008-PL-965, the two insurers disputed which policy was triggered after a school in which insured McCurdy Mechanical installed plumping, sewers, and drains was flooded due to a fractured storm drain pipe. At the time McCurdy performed the work on the school, it had a commercial general liability policy with West Bend Mutual Insurance. When the damaged pipe burst and caused the flooding in the school, Grange Mutual Casualty provided McCurdy’s CGL insurance. It was later discovered that the pipe was fractured by McCurdy sometime around spring of 2005, when West Bend's policy was active.

The two insurers jointly settled with the school’s insurance company for damages from the flood and then filed competing motions for summary judgment as to which insurer was responsible. The trial court denied Grange’s motion for summary judgment and granted West Bend’s motion for summary judgment.

The majority found that the parties incorrectly focused on the timing of the occurrences in the case and that they aren’t really relevant to the determination of coverage based on the insurance policies, which are very similar. What’s important is the timing of the property damage because the policies require that the damage occur during the policy period, wrote Judge Ezra Friedlander.

The majority held that in this case, it’s not an “either-or determination.” West Bend’s coverage was triggered by the original fracturing of the storm drain pipe which resulted in immediate damage to the pipe and subsequent flooding. They held that the policy covers all damages that flowed from the original damage, including the extensive flood damage. But Grange is also responsible for some damages, they held. Coverage under the Grange policy was triggered when the flooding occurred during its policy period, regardless of when the original negligence took place, wrote the judge. The majority remanded for the trial court to apportion damages accordingly.

Judge Melissa May agreed with the majority that West Bend’s policy covers all damages that flowed from the original damage, but disagreed that Grange’s policy also covers the flood damage at issue.

“There is nothing to ‘apportion.’ The majority is correct that the West Bend policy covers ‘all damages,’ and I would accordingly decline to hold there could be damages in addition to ‘all damages’ or that any such additional damages could be assigned on remand to Grange,” she wrote. “I believe ‘all’ means ‘all,’ and I would accordingly reverse and direct summary judgment for Grange.”

Judge May cited Parr v. Gonzalez, 669 N.W.2d 401 (Minn. Ct. App. 2003), to support her conclusion that the Grange policy isn’t implicated. Parr held that when damages arise from “discrete and identifiable events that occur within the policy period, the actual-injury trigger theory allows those policies on the risk at the point of initial damage to pay for all the damages that follow.”


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  1. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.