Monday, May 18, 2015
Ind. Decisions - Supreme Court denies another transfer petition; revises 5/15/15 transfer list.
In a 4-page published order filed May 15th but just posted this afternoon, the Supreme Court has denied transfer, after oral argument, in the case Thomson Inc. n/k/a Technicolor USA. Inc. v. Insurance Com. The 6/19/14 Court of Appeals opinion is to be certified as final.
The vote is 3-2:
Dickson, David, and Massa, JJ., concur.This order was not included on the transfer list posted this morning, but it does appear as the next-to-last entry in a list revised and reposted this afternoon.
Rush, C.J., dissents to the denial of transfer with a separate opinion, in which Rucker, J., joins. [It begins]
I respectfully dissent from the denial of transfer because, like 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). 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.