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Justices author dissents in appeal denials

May 19, 2015

The Indiana Supreme Court won’t hear two cases in which justices felt compelled to write dissents arguing why they believed toxic-litigation and marital estate distribution appeals should be heard.

Chief Justice Loretta Rush wrote in an opinion joined by Justice Robert Rucker that the court was missing an opportunity to settle the interpretation of common insurance policy language in a long-running lawsuit brought by workers in a former television factory in Taiwan who claimed they were sickened by toxic contaminants. The suit named an Indiana-based company with an interest in the plant.

A majority of justices last week declined to hear the appeal in Thomson Inc. n/k/a Technicolor USA, Inc. v. Insurance Company of North America n/k/a Century Indemnity Company, et al., and XL Insurance America, et al., 49A05-1109-PL-470. A divided Court of Appeals panel found that the trial court erred in ruling in favor of an insurer and sent the case back to the trial court for summary judgment in favor of Thomson and limited other proceedings.

But Rush wrote in dissent that the case was “a matter of significant Statewide importance, both because it is an insurance industry standard form in widespread use, and because this particular dispute often arises in connection with high-stakes ‘long tail’ environmental claims like this one.”

The policy in this case used the language “those sums” instead of “all sums,” which the COA majority held put the trial court in the best position to determine proration of liability among insurers. The majority of justices agreed, though Rush and Rucker aligned with COA Chief Judge Nancy Vaidik’s dissent.

“(L)ike Chief Judge Vaidik, I see no material difference between the policy language in this case and the similar language we interpreted in Allstate  Ins. Co. v. Dana Corp., 759 N.E.2d 1049 (Ind. 2001),” Rush wrote. “Simply changing ‘all sums’ to ‘those sums,’ and placing ‘during the policy period’ in the insuring clause rather than in the definition of ‘occurrence,’ does not unambiguously permit Thomson’s various insurers to prorate coverage between themselves — and any ambiguity in that regard must be strictly construed against the insurer. There is also no principled method to calculate such a proration — only guesswork under the guise of ‘factfinding.’ We should not burden trial courts with that task based on policy language that is ambiguous at best.”

Separately last week, Justices Steven David and Brent Dickson dissented from the denial of transfer in a case involving a dispute over distribution of pension proceeds in a divorce. David wrote that he would grant transfer in Nancy Hay v. Richard Hay, 11A01-1401-DR-22, in which a divided Court of Appeals panel reversed an order of contempt for Nancy Hay for failing to pay her ex-husband according to terms of a marital distribution order.

David wrote in dissent that he would grant transfer, “as I believe the August 2000 Marital Estate Distribution Order to be unambiguous,” directing Nancy Hay’s monthly pension of $2,369.63 to be divided equally with her ex-husband.

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