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Thursday, May 23, 2013

Ind. Decisions - Court of Appeals issues 2 today (and 11 NFP)

For publication opinions today (2):

United States Fidelity and Guaranty Company v. Warsaw Chemical Company, Inc., a 12-page opinion, Judge Bradford writes:

Over the course of several decades, Appellee/Cross-Appellant/Plaintiff Warsaw Chemical Company (“Warsaw”) released pollutants into the soil and groundwater at its Warsaw, Indiana facility. This contamination was discovered in the late 1980s, and Warsaw agreed to remediate in August of 1989. In 1990, Warsaw notified its general liability insurer, Appellant/Cross-Appellee/Defendant United States Fidelity and Guaranty Company (“USF&G”), of the contamination and that Warsaw was seeking reimbursement for the remediation pursuant to its primary and excess policies. USF&G notified Warsaw that it believed that coverage did not exist for a number of reasons and denied coverage pursuant to both primary and excess liability policies. In 1992, in exchange for $25,000, Warsaw released USF&G from claims or demands related to the remediation.

In 2007, Warsaw filed suit against USF&G, contending, inter alia, that the 1992 release only concerned primary liability policies. Over the course of the next few years, the trial court ruled that (1) the 1992 release did not bar coverage under the excess policies, (2) Warsaw’s claim was not time-barred, and (3) coverage existed under the personal injury coverage of the excess policies. The trial court ultimately entered judgment in favor of Warsaw for $417,953.

USF&G contends that the trial court erred in ruling in Warsaw’s favor because (1) the 1992 release executed by Warsaw covered the excess policies, (2) Warsaw’s claim is time-barred, (3) coverage does not exist under the personal injury provisions of its policies with Warsaw, and (4) not all of Warsaw’s costs were covered even if coverage did exist. Warsaw responds to all of these arguments and additionally claims that (1) the Court of Appeals should affirm for the alternate reason that coverage exists under the property damage provisions of the relevant policies and (2) Warsaw is entitled to prejudgment interest. Because we conclude that the 1992 release covered the excess policies, we reverse the judgment of the trial court and remand with instructions. * * *

The unambiguous operative language of the Release provided that Warsaw was releasing USF&G

from any further claims, demands, causes of action, damages, clean-up costs, expert fees, consulting fees, attorneys fees, costs or losses of any kind and nature whether known or unknown, foreseen or unforeseen, anticipated or unanticipated arising from, or in any way related to, the pollution and contamination of the soil and groundwater in, upon or adjacent to the Warsaw facility in Warsaw, Indiana.
Appellant’s App. p. 289. Recital language that arguably suggests that the release applied to only some of the insurance policies Warsaw had with USF&G does not trump this clear language. Because the Release covered the excess policies, the trial court erred in denying USF&G’s summary judgment motion on this point. We therefore reverse the judgment of the trial court and remand for entry of summary judgment in favor of USF&G.
In City of Carmel, through its Redevelopment Commission v. Crider & Crider, Inc., Hagerman Construction Corporation, a 6-page opinion, Chief Judge Robb writes:
City of Carmel, through its Redevelopment Commission, (“CRC”) brings this appeal from the trial court’s denial of its motion to transfer venue in the lawsuit filed by Crider & Crider, Inc., (“Crider”) against it and Hagerman Construction Corporation (“Hagerman”) in Allen County. The sole issue for our review is: whether the trial court abused its discretion by denying CRC’s motion to transfer venue from Allen County to Hamilton County. Concluding that Hamilton County is the appropriate venue, we reverse. * * *

All of the parties here agree that the original complaint and the cross-claim are “inextricably intertwined” and should be decided together. Brief of Appellees at 16. Thus, Hamilton County is the appropriate venue for the entire matter. See Linky, 799 N.E.2d at 57-58 (holding that venue in Marion County was proper as to the defendant due to a venue selection clause in an agreement between the plaintiff and another defendant because of the overriding policy of conserving judicial resources and because all of the parties would be subject to joinder under Trial Rule 21(B) and “[t]he sequence of the inclusion of the defendants in this action does not change the result”). The trial court abused its discretion by denying CRC’s motion to transfer venue.

NFP civil opinions today (3):

Joseph D. Hardiman and Jaketa L. Patterson, as Co-Administrators of the Estate of Britney R. Meux, Deceased v. Jason R. Cozmanoff (NFP)

Norman A. Ellis, Sr. v. Sikanyiso Ellis (NFP)

In the Matter of the Involuntary Term. of the Parent-Child Rel. of P.M., A.T. & A.P., Minor Children, and their Mother, S.T,; S.T. v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (8):

C.N. v. State of Indiana (NFP)

Roy Austin Smith v. State of Indiana (NFP)

Ernest P. Glass v. State of Indiana (NFP)

Kristol Toms v. State of Indiana (NFP)

George A. Reese, Jr. v. State of Indiana (NFP)

Samuel Fancher v. State of Indiana (NFP)

Charles Kootz v. State of Indiana (NFP)

Jose Perez v. State of Indiana (NFP)

Posted by Marcia Oddi on May 23, 2013 12:46 PM
Posted to Ind. App.Ct. Decisions