Significant Cases
Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Standard Fusee Corp., 917 N.E.2d 170 (Ind. Ct. App. 2009) (choice of law, “absolute” pollution exclusion, and participation in “voluntary remediation program” as a “suit”).
Travelers Cas. and Sur. Co. v. U.S. Filter Corp.,870 N.E.2d 529, (Ind. Ct. App. 2007), rev’d (2008) (amicus curiae) (assignment of the right to recover under insurance policies, both pre- and post-claim)
City of South Bend v. Century Indem. Co., 821 N.E.2d 5 (Ind. Ct. App. 2005) (declaratory action against insurers of polluter not a "direct action")
Wolf Lake Terminals, Inc. v. Mut. Marine Ins. Co., 433 F.Supp.2d 933 (N.D. Ind. 2005) (trigger of coverage for environmental claims, late notice, prejudgment interest)
PSI Energy, Inc. v. Home Ins. Co., 801 N.E. 2d 705 (Ind. Ct. App. 2004) (ability to pursue future cleanup claims against excess insurers, late notice, lost policies, subjective "expected and intended" to cause pollution standard, "injury-in-fact" trigger)
Freidline v. Shelby Ins. Co., 774 N.E.2d 37 (Ind. 2002) (amicus curiae) (inapplicability of pollution exclusion)
Allstate Ins. Co. v. Dana Corp., 759 N.E.2d 1049 (Ind. 2001) ("all sums" allocation of environmental damage spanning multiple policy periods, inapplicability of owned property exclusion to cleanup claims, "injury-in-fact" trigger)
Employers Ins. of Wausau v. Recticel Foam Corp., 716 N.E.2d 1015 (Ind. Ct. App. 1999) (forum non conveniens, choice of law);
Travelers Indem. Co. v. Summit Corp. of Am., 715 N.E.2d 926 (Ind. Ct. App. 1999) (choice of law for multiple cleanup sites, "personal injury" coverage for environmental claims, governmental demands as "suits," cleanup costs as "damages," pollution exclusions)
Govt’l Interinsurance Exch. v. City of Angola, Ind., 8 F.Supp.2d 1120 (N.D. Ind. 1998) (inapplicability of pollution exclusion, "suit," compliance with cleanup demands not "voluntary payments")
Hartford Accident & Indem. Co. v. Dana Corp., 690 N.E.2d 285 (Ind. Ct. App. 1997) (environmental regulators’ demands as "suits," cleanup costs as "damages")
Am. States Ins. Co. v. Kiger, 662 N.E.2d 945 (Ind. 1996) (inapplicability of "sudden and accidental" and "absolute" pollution exclusions)
Seymour Mfg. v. Comm’l Union Ins., 665 N.E.2d 891 (Ind. 1996) (amicus curiae) (inapplicability of pollution exclusions)
Examples
Some of our cases:
Many of our insurance coverage clients are among the largest companies in the world. We have filed comprehensive actions on their behalf involving cleanup sites located across the nation—or even in other countries—against their primary, excess and umbrella insurers over a period of decades. In a number of instances, we have recovered tens of millions of dollars or more for our clients.
Equally important are our representations seeking coverage for environmental liabilities faced by small to mid-size companies in Indiana and elsewhere. We have handled hundreds of such cases.
We have represented the owners and operators of a number of large chains of petroleum retailing and convenience stores in obtaining coverage for past cleanup costs, as well as coverage in place agreements or buyouts for future costs. We also have done similar work for literally hundreds of smaller operators. An important feature of this work is the interplay between public remediation funds and private insurance. This work has resulted in the cleanup of petroleum releases at hundreds or even thousands of locations.
Our insurance attorneys have negotiated agreements at Lloyd’s of London. We have considerable experience dealing with Equitas and Resolute Management, and with other London Market schemes of arrangement and insolvencies.
We have represented a number of large companies facing thousands of bodily injury claims arising from the sale of products that allegedly were defective or which caused bodily injury from exposure to toxic or injurious substances.
A notable aspect of our insurance practice is the ease with which we have acted as co-counsel with coverage attorneys at other firms prosecuting or defending declaratory actions in Indiana. We have worked with colleagues at a number of the largest law firms in America in seeking coverage for environmental cleanups and products liabilities.
Some of the types of claims we have handled:
Environmental and legal costs associated with historic leaks and spills of substances—such as petroleum or solvents—both on-site and off-site
Liabilities arising from third-party waste disposal or recycling sites under CERCLA, RCRA and state law equivalents
Liabilities from landfills and other waste disposal sites; solvent recovery and oil recycling operations; sites where wastes were entrusted to third-parties; and tank, drum and vessel cleaning operations
Governmentally order cleanups and "voluntary" cleanups by the policyholder in nominal cooperation with governmental authorities
Governmental response costs associated with cleanups
Containment costs necessary to prevent further releases of hazardous substances
The value of permit forfeitures or supplemental environmental projects ("SEPs")
Legal fees incurred seeking contribution or cost recovery from third parties
Plant decommissioning costs
Costs associated with a collision or rupture of structure, vehicle or vessel
Structure removal costs
Temporary remedial measures
Natural resource damages
In-house legal and expert fees
Prejudgment and post-judgment interest
Our clients have recovered from their insurers when the environmental liabilities were caused by the policyholder, its subsidiaries, or previous owners or operators, including companies the policyholder merged with or acquired
First-party claims as a result of construction defects, mold, spider infestations, meth labs, theft and fire
Health, disability and life insurance cases
Disputes with insurers concerning payments under medical stop loss plans and the application of self insured retentions (SIRs) or deductibles
Some of the types of insurance coverage issues we have handled:
Pollution exclusions: "sudden and accidental," "absolute," and "function in your business"
Administrative proceedings and VRP agreements as "suits"
"All sums, " those sums, and pro rata allocation issues
Horizontal and vertical exhaustion questions
Aggregate limits issues
Insurer insolvencies, liquidations and receiverships
Assignment or transfer of rights to coverage
Cleanup costs as "damages"
Forum non conveniens
Choice of law
Contribution and equitable subrogation
Duty to defend issues
"Drop down" by excess and umbrella policies
Late notice and prejudice issues
"Expected or intended" questions
Estoppel
After acquired liabilities
Bad faith
Trigger of coverage questions
Owned property exclusions
"Personal injury" and "advertising injury" coverage
Wear and tear exclusions
Self insured retentions (SIRs) and deductibles
Dischargeability of environmental liabilities in bankruptcy
Number of occurrences, including with respect to class actions
Batch clauses
Scope of the products liability hazard
Completed operations
Product representations and warranties
Product warnings and labeling
Coverage for punitive damages
Property damage and "economic loss"
"Your work" exclusions
Other insurance coverage work by our firm:
Our insurance lawyers have testified several times in opposition to legislative initiatives to overturn judicial interpretations of insurers’ pollution exclusion policy provisions. One of these efforts led to a veto of legislation which would have undone courts’ prior constructions of historical insurance policies
Two of our attorneys represented the Indiana Insurance Commissioner in investigating financial mismanagement by failed insurance companies. These representations involved investigating possible claims and analyzing potential sources of recovery for these claims, including fidelity bonds and E&O and D&O insurance policies
Scholarly articles by our attorneys on insurance coverage issues have been published in The Journal of Insurance Coverage, the Environmental Claims Journal, the Indiana Law Review and other journals
We are regular presenters on insurance coverage issues to legal and industry audiences, both locally and nationally
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