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Friday, August 02, 2013

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In Northern Assurance Co. of America, Successor in Interest to Certain Liabilites of Employers Surplus Lines Ins. Co. v. Thomson Inc. k/n/a Technicolor, USA, Inc., Technicolor Inc.,/Technicolor Limited, a 28-page, 2-1 opinion, Judge Mathias writes:

Thomson, Inc. n/k/a Technicolor USA Inc. (“Technicolor”), sued several insurance companies, including Northern Assurance Co. of America (the successor in interest to Employers Surplus Lines Insurance Co. (“ESLIC”)), seeking insurance coverage for environmental damages at three sites owned by Technicolor. The trial court granted summary judgment in favor of Technicolor, concluding that Technicolor was entitled to coverage under the policies ESLIC had issued. On appeal, ESLIC argues that the trial court should have applied California law when interpreting the ESLIC policies and that, if California law is applied, Technicolor has no coverage under the ESLIC policies for cleanup costs at the contaminated sites because Technicolor’s cleanup costs do not constitute damages resulting from a suit brought against Technicolor. * * *

We conclude that ESLIC did not waive its choice-of-law argument. We also conclude that, under a choice-of-law analysis, California law should apply to the interpretation of the ESLIC policies because California is the state with the most significant relationship to the transaction and the parties. Finally, under California law, the ESLIC policies provide coverage only for money damages ordered by a court and do provide coverage for expenses incurred as a result of responding to the cleanup orders of administrative agencies. We therefore reverse the order of the trial court granting summary judgment in favor of Technicolor and remand with instructions to enter summary judgment in favor of ESLIC. Reversed and remanded.

MAY, J., concurs.
BAKER, J., concurs in part and dissents in part with opinion. [beginning on p. 22 of 28] concur with the majority’s conclusions that ESLIC did not waive its choice-of-law argument and that under a choice-of-law analysis, California law applies. However, I part ways with the majority’s application of California law, trusting that if our environmentally-conscious colleagues to the west were confronted with this issue, they would no longer permit their environment to go uncleansed. * * *

Returning to the earlier question of what would California’s Supreme Court do if presented with the controversy with which this Court is now presented, I cannot turn a blind eye to the fact that California is indeed a leader in environmental law. This fact coupled with Justice Chin’s recent limiting of the Foster-Gardner Rule and Justice Kennard’s firm insistence that it should be overruled entirely certainly show a weakening of a rule that never received much support from either the California Supreme Court or the country at large from its inception.

But most of all, basic common sense informs me that the Foster-Gardner Rule does not further the objectives of California law. Indeed it impedes them. By holding that a remediation order from the EPA or C-EPA is insufficient to trigger the protections of CGL policies, the California Supreme Court is discouraging the environmental cleanup of its state, which from the discussion above, is clearly something that its citizens hold in high regard. “And there comes a point where [the courts] should not be ignorant as judges of what [they] know as men.” Watts v. Indiana, 338 U.S. 49, 52 (1949). Accordingly, for all these reasons, I believe that if the California Supreme Court was presented with this case at this time, it would no longer permit ill-advised precedent from giving its environmental law the full and complete effect it was intended to have. Therefore, I respectfully dissent.

NFP civil opinions today (2):

In the Matter of the Termination of the Parent-Child Rel. of M.R.; C.B. v. Indiana Department of Child Services (NFP)

Carolyn (Hansen) Miller v. Robin Mendelsohn, M.D. (NFP)

NFP criminal opinions today (3):

Jeremy Benner v. State of Indiana (NFP)

Randy Reeder v. State of Indiana (NFP)

Dwayne Kelly v. State of Indiana (NFP)

Posted by Marcia Oddi on August 2, 2013 09:52 AM
Posted to Ind. App.Ct. Decisions