A trial court improperly ruled in favor of an insurer on Thomson Inc.’s claims for the cleanup of toxic chemicals at two consumer electronics manufacturing sites.
“Based on the evidence, we conclude that a material issue of fact exists as to whether Thomson had actual knowledge of its liability as to contamination … prior to the purchase of XL’s policies,” Indiana Court of Appeals Judge James Kirsch wrote for the majority joined by Judge Margret Robb in Thomson, Inc. n/k/a Technicolor USA, Inc., et. al. v. XL Insurance America, Inc. f/k/a Winterthur International America Insurance Co., et. al., 49A02-1401-PL-9. The panel reversed summary judgment in favor of XL and remanded to Marion Superior Judge Michael D. Keele for entry of summary judgment in favor of Thomson on one matter and further proceedings on another.
Thomson incurred $4.3 million in remediating groundwater around the site of a plant in Taiwan, and the trial court erred in granting the insurer summary judgment and denying summary judgment for Thomson. The company also incurred $25,000 in costs investigating possible contamination at a plant site in Circleville, Ohio. The majority found summary judgment for the insurer was error and remanded for proceedings on this issue.
Judge John Baker dissented and found that the known loss doctrine prohibits Thomson from recovering damages at either site. Baker wrote that Thomson was aware of contamination at the Taiwan site as early as 1989. Baker would affirm the trial court’s grant of summary judgment in favor of XL with regard to both sites.