Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kamin v. Travelers Casualty and Surety Co.

United States District Court, S.D. Indiana, Indianapolis Division

March 6, 2014

DANIEL G. KAMIN, Plaintiff,
v.
TRAVELERS CASUALTY AND SURETY COMPANY f/k/a THE AETNA CASUALTY AND SURETY COMPANY, Defendant.

ORDER [1]

JANE MAGNUS-STINSON, District Judge.

Presently pending before the Court are a Motion to Dismiss on the Basis of Res Judicata filed by Defendant Travelers Casualty and Surety Company f/k/a The Aetna Casualty and Surety Company ("Travelers"), [Filing No. 6], and Travelers' Request for Oral Argument on its motion to Dismiss on the Basis of Res Judicata, [Filing No. 8]. For the reasons that follow, the Court denies Travelers' Motion to Dismiss. The parties' briefs afforded the Court an adequate basis on which to rule without the assistance of oral argument. The Court therefore denies Travelers' Request for Oral Argument, [Filing No. 8].

I.

THE COMPLAINT ALLEGATIONS

A. The 2009 IDEM Complaint

Plaintiff Daniel Kamin owns the Eastbrook Plaza Shopping Center, located at 25th Street and National Road in Columbus, Indiana (the "Site"). [Filing No. 1-1, at ECF p. 4.] On December 17, 2009, the Indiana Department of Environmental Management ("IDEM") informed Mr. Kamin and one of his companies, the Kamin Realty Company ("Kamin Realty"), that a dry cleaning solvent called Tetrachloroethene, or PCE, had been discovered in the groundwater along the boundaries of the Site (the "2009 IDEM Complaint"). [Filing No. 1-1, at ECF p. 6.] IDEM demanded that Mr. Kamin and Kamin Realty investigate the extent of the contamination, and Mr. Kamin and Kamin Realty complied. [Filing No. 1-1, at ECF p. 6.] On December 7, 2012, Mr. Kamin and Kamin Realty advised IDEM that they did not believe they were liable for further investigation, or for remediation of the Site. [Filing No. 1-1, at ECF p. 6.] Mr. Kamin and Kamin Realty advised IDEM that it should exercise its enforcement authority against the former owner of the Site, Indiana Realty Fund 1971, LP ("Indiana Realty") and its general partner, Kenneth Heugel. [Filing No. 1-1, at ECF p. 6.]

B. Efforts to Ascertain Applicable Insurance

After receiving the 2009 IDEM Complaint, Mr. Kamin and Kamin Realty began "an investigation to ascertain the historical insurance for the Site." [Filing No. 1-1, at ECF p. 7.] The investigation revealed several insurance companies that had sold insurance policies to Mr. Kamin and/or his companies insuring the Site. [Filing No. 1-1, at ECF p. 7.] On December 14, 2010, coverage counsel for Mr. Kamin and Kamin Realty contacted the insurers they had identified in their investigation and requested that the insurers defend and indemnify Mr. Kamin and Kamin Realty in connection with the 2009 IDEM Complaint. [Filing No. 1-1, at ECF p. 7.] Mr. Kamin and Kamin Realty also requested copies of any evidence of liability or property policies from those insurers [Filing No. 1-1, at ECF p. 7.] As of December 14, 2010, Mr. Kamin and Kamin Realty had "been unable to locate evidence identifying Travelers as an entity that insured the Site." [Filing No. 1-1, at ECF p. 7.] Subsequently, however, two insurance agents that had been involved in issuing policies covering the Site informed Mr. Kamin and Kamin Realty that a Travelers entity had insured the Site. [Filing No. 1-1, at ECF pp. 7-8.]

Coverage counsel for Mr. Kamin and Kamin Realty contacted Travelers on December 21, 2010, requesting a defense and indemnity in connection with the 2009 IDEM Complaint and evidence of any policies issued by Travelers. [Filing No. 1-1, at ECF p. 8.] On December 22, 2010, Travelers acknowledged receipt of a letter from one of the insurance agents which had identified Travelers as an insurer of the Site, and stated that it would search for "any potentially applicable policies, or any other information respecting policies we may have issued to Kamin." [Filing No. 1-1, at ECF p. 8.] On December 28, 2010, Travelers acknowledged receipt of a letter from Mr. Kamin and Kamin Realty. [Filing No. 1-1, at ECF p. 8.] Travelers did not, however, provide Mr. Kamin, Kamin Realty, or their coverage counsel with any policies or evidence of policies at that time. [Filing No. 1-1, at ECF p. 8.]

C. The April 2012 Lawsuit by Travelers Against Mr. Kamin and Kamin Realty

On April 2, 2012, Travelers and several affiliated Travelers companies filed suit against Mr. Kamin and Kamin Realty in the United States District Court for the Western District of Pennsylvania, Cause No. 2:12-cv-00422-AJS (the "First Coverage Action"). [Filing No. 1-1, at ECF p. 8.] In the First Coverage Action, Travelers and its related entities sought a declaratory judgment on specific policies identified in the complaint, but did not seek a coverage determination on Policy Number 27 SM 1059437 FCS, which covered the Site from September 15, 1986 through September 15, 1987 (the "86-87 Policy"). [Filing No. 1-1, at ECF p. 9.]

On November 30, 2012, after failing to reach a settlement, the parties filed a Stipulation for Dismissal "without prejudice and without interest and costs to any party" in the First Coverage Action. [Filing No. 1-1, at ECF p. 9.] The court dismissed the First Coverage Action that same day. [Filing No. 1-1, at ECF p. 9.] The Travelers entities did not disclose the existence of the 86-87 Policy during the First Coverage Action. [Filing No. 1-1, at ECF p. 9.]

D. The 2013IDEM Notice

On July 9, 2013, IDEM sent a Special Notice of Potential Liability and Request for Information (the "2013 IDEM Notice") to Mr. Kamin. [Filing No. 1-1, at ECF p. 6.] The 2013 I D EM Notice requested certain information regarding the Site, informed Mr. Kamin that he must conduct additional activities at the Site until IDEM determines that he is not further responsible, and threatened civil penalties for noncompliance. [Filing No. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.