INSURANCE COVERAGE

We represented the policyholder in the following environmental insurance coverage or similar cases

PLEWS SHADLEY RACHER & BRAUN REPRESENTED THE POLICYHOLDER IN THE FOLLOWING REPORTED DECISIONS

American States Ins. Co. v. Kiger, 662 N.E.2d 945 (Ind. 1996), reh'g denied ("sudden and accidental" pollution exclusion in CGL policy does not bar coverage for gradual gasoline release because "sudden" reasonably can be construed to mean "unexpected"; absolute pollution exclusion in CGL policy also does not bar coverage because it does not specifically exclude gasoline and is so broad that to construe it literally would produce absurd results).

Allstate Ins. Co. v. Dana Corp., 759 N.E.2d 1049 (Ind. 2001) (an insurer must pay "all sums" for which a policyholder is liable whenever it is shown that property damage or personal injury has occurred, in whole or in part, during that insurer’s policy period; standard form "owned property" exclusion does not bar coverage for environmental cleanups of sites owned by the policyholder; non-standard form "owned property" exclusion does not bar coverage for cleanups of groundwater escaping the policyholder’s property or contamination directly affecting groundwater outside the owner’s borders; let stand a ruling by the Court of Appeals that environmental liabilities may constitute a covered "wrongful entry" under "personal injury" coverage provisions).

City of South Bend v. Century Indem. Co., 821 N.E.2d 5 (Ind. Ct. App. 2005) (a declaratory action against the liability insurers of a fomer automaker which caused environmental damage is not an impermissible "direct action").

PSI Energy, Inc. v. The Home Insurance Co., (Ind. Ct. App. 2004) (the policyholder's actual subjective expectation or intent governs whether environmental damage was expected or intended; notice may be considered timely if it is impossible to determine without substantial investigation which policies are triggered by a multi-year environmental occurrence).

Employers Ins. of Wausau v. Recticel Foam Corp., 716 N.E.2d 1015 (Ind. Ct. App. 1999) (insurer breached its duty to defend under non-waiver agreement; policies governed by Indiana law and Indiana is proper forum where company headquartered in Indiana faced liability for out of state cleanup).  

Travelers Indem. Co. v. Summit Corp. of America, 715 N.E.2d 926 (Ind. Ct. App. 1999) (environmental liabilities are covered under "personal injury" part of CGL policy and are not subject to any pollution exclusion; policies governed by Indiana law where greatest number of cleanup sites located in state). 

Governmental Interinsurance Exchange v. City of Angola, 8 F.Supp.2d 1120 (N. D. Ind. 1998) (insurer must pay for cleanup of petroleum contamination because absolute pollution exclusion does not bar underground storage tank claims).

Hartford Accident & Indem. Co. v. Dana Corp., 690 N.E.2d 285 (Ind. Ct. App. 1997), trans. denied, (1998) (environmental cleanup costs are covered "damages" under CGL policy; environmental administrative proceeding is a "suit" under provision requiring insurer to defend "suits seeking damages"; "suit" broad enough to include, among other things, CERCLA requests for information, unilateral orders, orders to respond to contamination and PRP letters).

In re Allied Products Corporation, 40 Bankr.Ct.Dec. 180 (N.D. Ill. 2003)
(liability insurers can be liable to environmental claimants despite the fact their policyholder is bankrupt or insolvent; environmental claimants against a bankrupt policyholder have an ultimate right to payment from the debtor's liability insurance carriers)

Riverside Oil, Inc. v. Federated Mut. Ins. Co., 1994 U.S. Dist. LEXIS 20394 (C.D. Ill. 1994) ("sudden and accidental" pollution exclusion in CGL policy must be construed to mean "unexpected and unintended" environmental liabilities are covered under "personal injury" part of CGL policy).

PLEWS SHADLEY RACHER & BRAUN REPRESENTED THE POLICYHOLDER
IN THE FOLLOWING TRIAL COURT DECISIONS

CGB Enterprises, Inc. v. Old Republic Ins. Co., Cause No. 65D01-0002-CP-00014 (Posey Superior Court, May 15, 2002) (insurance carrier liable for the costs of temporary environmental remedial measures required to filter effluent and prevent a plant shutdown, as well as prejudgment interest).

EMI Co. v. Royal Ins. Co., et al., Cause No. 49D06-9811-CP-1550 (Marion Superior Court, August 22, 2000) (absolute pollution exclusion in CGL policy does not bar coverage for claim involving improper handling of PCB oil).

Henschen Oil, Inc. v. Burris Equipment Co., Inc., Cause No. 20C01-9805-CT-036 (Elkhart Cir.Ct. June 15, 2000) (absolute pollution exclusion in CGL policy is ambiguous and thus does not bar coverage for claim involving a gasoline release).

EMI Co. v. Royal Ins. Co., Cause No. 49D06-9811-CP-1550 (Marion Superior Court, May 30, 2000) (first party policy covers PCB cleanup costs under its "debris removal" and "PCB 'Pollutant' Cleanup and Removal" provisions).

Reliance Ins. Co. of Illinois v. Raybestos Products Co., Cause No. IP97-0027-C-Y/G (U.S. District Court, Southern District of Indiana, January 19, 2000) (absolute pollution exclusion in CGL policy is ambiguous and unenforceable as a matter of law and "personal injury" provisions provide alternative means to cover PCB liability claim).

General Housewares Corp. and Chicago Cutlery, Inc. v. CNA Ins. Co., Cause No. 49D06-9706-CP-920 (Marion County Superior Court, January 6, 2000) (absolute pollution exclusion in CGL policy does not bar coverage for claims involving environmental contamination at owned and non-owned sites, and cleanup costs are covered "damages").

Contractors United, Inc. v. Commercial Union Ins. Co., Inc., Cause No. 49C01-9406-CP-2003 (Marion Circuit Court, October 27, 1999) (policyholder is entitled to coverage for Superfund claims even though insurers claimed first notice came years after policyholder had received initial notices of potential responsibility from USEPA).

Crown Int'l, Inc. v. Great N. Ins. Co., Cause No. 49D12-9704-CP-522 (Marion Superior Court, March 13, 1998) (absolute pollution exclusion in first party policy does not bar coverage for damage to electronic equipment by muriatic acid fumes).

Sam Winer & Co., Inc. v. Commercial Union Ins. Co., Inc., Cause No. 20D01-9207-CP347 (Elkhart Superior Court, February 18, 1994) (“suit” includes administrative actions under CERCLA.  Court grants summary judgment in favor of policyholder on duty to defend).