TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, ET AL, Appellants-Defendants,
MAPLEHURST FARMS, INC., ET AL, Appellee-Plaintiffs
APPEAL FROM THE MARION SUPERIOR COURT. The Honorable David J. Certo, Judge. Cause No. 49F12-0703-PL-10831.
ATTORNEYS FOR APPELLANT: RICHARD A. ROCAP, Rocap Musser, LLP, Indianapolis, Indiana; JEFFREY C. GERISH, Plunkett Cooney, Bloomfield Hills, MI.
ATTORNEYS FOR APPELLEE: GEORGE M. PLEWS, TODD J. JANZEN, BRIANNA J. SCHROEDER, Plews Shadley Racher & Braun, LLP, Indianapolis, Indiana.
BARNES, Judge. BRADFORD, J., and BROWN, J., concur.
Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and Travelers Property Casualty Company of America (collectively, " Travelers" ) appeals the trial court's grant of summary judgment to Maplehurst Farms, Inc., and Maplehurst Dairy, Inc., n/k/a Amscor, Inc, (collectively, " Maplehurst" ). We reverse and remand.
We address one dispositive issue, which we restate as whether the trial court erred when it determined that Travelers was liable for expenses Maplehurst allegedly incurred after it gave Travelers notice of the insurance claim.
Maplehurst owned and operated a dairy farm in Indianapolis from 1933 until 1997. At some point in the 1950s, Maplehurst installed an underground storage tank (" UST" ) on the property that was used to store heating oil until the 1970s. In 1997, Maplehurst sold the property to Dean Foods Company (" Dean" ). At some point, Dean conveyed the property to Palmer Properties, LLC, (" Palmer" ). In February 2000, Dean discovered environmental contamination at the property, which it reported to the Indiana Department of Environmental Management (" IDEM" ). In August 2000, Dean requested that Maplehurst remediate the contamination. In January 2002, IDEM advised Dean and Maplehurst that, if they could not reach an agreement and provide a proposal to IDEM within thirty days, IDEM might issue an enforcement order requiring the parties to undertake the necessary response actions at the dairy. Maplehurst submitted a corrective action plan (" CAP" ) to IDEM in September 2002.
On December 27, 2002, Maplehurst entered into a settlement agreement (" Dean Settlement" ) with Dean. Under the Dean Settlement, Maplehurst agreed to pay Dean $170,000 and to " assume full and
complete responsibility as the responsible parties to remediate the environmental contamination reflected in the incident to IDEM's satisfaction." Appellant's App. p. 52. The parties acknowledged that Maplehurst had provided IDEM with a CAP in September 2002. Maplehurst agreed to " remediate the contamination in accordance with IDEM's requirements and the CAP with such amendments thereto as may be required by IDEM." Id. at 53. In part, Dean agreed to cooperate with Maplehurst's efforts to pursue insurance claims " in connection with this Agreement, the Claim and in the ongoing remediation of the contamination pursuant to the CAP." Id. at 54.
At some point, Maplehurst discovered that it had insurance policies with Century Indemnity Company (" Century" ), American Economy Insurance Company (" American Economy" ), and Travelers for the relevant time periods. The Travelers policy provided, in part: " No insureds will, except at their own cost, voluntarily make a payment, assume any obligation, or incur any expense, ...