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Justices disagree on pollution exclusion coverage

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A divided Indiana Supreme Court has held that the pollution exclusion contained in a general commercial liability policy is ambiguous and should be construed to provide coverage rather than in favor of the insurance company trying to deny coverage.

In a 3-2 decision in State Automobile Mutual Insurance Company v. Flexdar, Inc. and RTS Realty, Justices Robert Rucker and Brent Dickson affirmed a ruling by Marion Superior Judge Michael Keele in favor of Flexdar. Justice Steven David concurred in result. But Justice Frank Sullivan and Chief Justice Randall Shepard disagreed, writing that they think the majority’s ruling will result in higher insurance premiums.

The case involves an Indianapolis rubber stamp and printing plate facility that operated from the mid-1990s to 2003, and how the manufacturing process used a chemical solvent that later appeared in the soil and groundwater on and near the site. The Indiana Department of Environmental Management informed the company it would be liable for cleanup costs, and Flexdar turned to its commercial general liability and umbrella insurance policies with State Automobile Mutual Insurance for defense and indemnification. State Auto agreed to defend Flexdar against the claims under a reservation of its right to deny coverage, but it later argued that the contamination wasn’t covered because of a pollution exclusion in the policy.

The trial court agreed with Flexdar that the policy’s exclusion language was ambiguous and should be construed against State Auto, and the intermediate appellate court affirmed.

Rucker wrote that Indiana applies basic contract principles to these issues and precedent has consistently held that an insurer can and should specify what falls within its pollution exclusion. In cases where the court’s found the language ambiguous, it has ruled in favor of coverage. In this case, the question is whether the policy language is sufficiently unambiguous to identify the chemical solvent as a pollutant, and this time they’ve determined it is not. Precedent dictates affirming the trial court’s decision, he wrote.

Sullivan and Shepard dissented in a two-page opinion, finding in favor of the insurer and noting they would have reversed the trial judge’s decision. Pointing to a 1996 decision from the state’s justices, Sullivan wrote that Indiana caselaw has never before stood for the proposition that all pollution exclusions are unenforceable but that is what this ruling now does.

 

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  1. The father is a convicted of spousal abuse. 2 restaining orders been put on him, never made any difference the whole time she was there. The time he choked the mother she dropped the baby the police were called. That was the only time he was taken away. The mother was suppose to have been notified when he was released no call was ever made. He made his way back, kicked the door open and terrified the mother. She ran down the hallway and locked herself and the baby in the bathroom called 911. The police came and said there was nothing they could do (the policeman was a old friend from highschool, good ole boy thing).They told her he could burn the place down as long as she wasn't in it.The mother got another resataining order, the judge told her if you were my daughter I would tell you to leave. So she did. He told her "If you ever leave me I will make your life hell, you don't know who your f!@#$%^ with". The fathers other 2 grown children from his 1st exwife havent spoke 1 word to him in almost 15yrs not 1 word.This is what will be a forsure nightmare for this little girl who is in the hands of pillar of the community. Totally corrupt system. Where I come from I would be in jail not only for that but non payment of child support. Unbelievably pitiful...

  2. dsm 5 indicates that a lot of kids with gender dysphoria grow out of it. so is it really a good idea to encourage gender reassignment? Perhaps that should wait for the age of majority. I don't question the compassionate motives of many of the trans-advocates, but I do question their wisdom. Likewise, they should not question the compassion of those whose potty policies differ. too often, any opposition to the official GLBT agenda is instantly denounced as "homophobia" etc.

  3. @ President Snow, like they really read these comments or have the GUTS to show what is the right thing to do. They are just worrying about planning the next retirement party, the others JUST DO NOT CARE about what is right. Its the Good Ol'Boys - they do not care about the rights of the mother or child, they just care about their next vote, which, from what I gather, the mother left the state of Indiana because of the domestic violence that was going on through out the marriage, the father had three restraining orders on him from three different women, but yet, the COA judges sent a strong message, go ahead men put your women in place, do what you have to do, you have our backs... I just wish the REAL truth could be told about this situation... Please pray for this child and mother that God will some how make things right and send a miracle from above.

  4. I hear you.... Us Christians are the minority. The LGBTs groups have more rights than the Christians..... How come when we express our faith openly in public we are prosecuted? This justice system do not want to seem "bias" but yet forgets who have voted them into office.

  5. Perhaps the lady chief justice, or lady appellate court chief judge, or one of the many female federal court judges in Ind could lead this discussion of gender disparity? THINK WITH ME .... any real examples of race or gender bias reported on this ezine? But think about ADA cases ... hmmmm ... could it be that the ISC actually needs to tighten its ADA function instead? Let's ask me or Attorney Straw. And how about religion? Remember it, it used to be right up there with race, and actually more protected than gender. Used to be. Patrick J Buchanan observes: " After World War II, our judicial dictatorship began a purge of public manifestations of the “Christian nation” Harry Truman said we were. In 2009, Barack Obama retorted, “We do not consider ourselves to be a Christian nation.” Secularism had been enthroned as our established religion, with only the most feeble of protests." http://www.wnd.com/2017/02/is-secession-a-solution-to-cultural-war/#q3yVdhxDVMMxiCmy.99 I could link to any of my supreme court filings here, but have done that more than enough. My case is an exclamation mark on what PJB writes. BUT not in ISC, where the progressives obsess on race and gender .... despite a lack of predicate acts in the past decade. Interested in reading more on this subject? Search for "Florida" on this ezine.

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