Appeal from the Marion Superior Court. The Honorable David J. Dreyer, Judge. Case No. 49D10-0501-PL-943.
ATTORNEYS FOR APPELLANT: George M. Plews, Jeffrey D. Claflin, Jonathan P. Emenhiser, Plews Shadley Racher & Braun LLP, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE THE CINCINNATI INSURANCE COMPANY: Julia Blackwell Gelinas, Maggie L. Smith, Carrie G. Doehrmann, Frost Brown Todd LLC, Indianapolis, Indiana.
Crone, Judge. Baker, J., and Pyle, J., concur.
[¶ 1] In FLM, LLC v. Cincinnati Ins. Co., 24 N.E.3d 444 (Ind.Ct.App. 2014) (" FLM II " ), we held, among other things, that the commercial general liability (" CGL" ) policy issued by The Cincinnati Insurance Company (" Cincinnati" ) provided property damage coverage to the insured, International Recycling Inc. (" IRI" ), which went out of business and abandoned 100,000 tons of Chrysler foundry sand on property owned by FLM, LLC (" FLM" ), after Chrysler stopped paying IRI for its sand disposal services. Consequently, we reversed the trial court's contrary ruling and remanded with instructions to enter summary judgment in FLM's favor on that issue. Cincinnati now petitions for rehearing, asserting that we also should have addressed whether the property damage was expected or intended by IRI and therefore subject to a coverage exclusion under the policy. We grant Cincinnati's petition to address this issue and affirm our original opinion in all respects.
[¶ 2] As mentioned in FLM II,
The CGL policy states that Cincinnati " will pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies." Appellant's App. at 165. The insurance applies to " property damage" only if it " is caused by an 'occurrence' that takes place in the 'coverage territory'" and " occurs during the policy period." Id. The policy defines " property damage" in pertinent part as " [p]hysical injury to tangible property, including all resulting loss of use of that property." Id. at 1171. " Occurrence" is defined as " an accident, including continuous or repeated exposure to substantially the same general harmful conditions." Id. The term " accident" is not defined.
Id. at 454. Based on Judge Bradford's separate opinion in the first appeal in this case, FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d 1167 (Ind.Ct.App. 2012) (" FLM I " ),
trans. denied (2013), we concluded that the contamination of FLM's property by the abandoned foundry sand was an " accident" and therefore an " occurrence" under the policy. See FLM II at 455 (" In other words, 'accident' could just as easily be referring to IRI's actions as to the unintended consequences of those actions, and this ambiguity must be resolved in favor of coverage." ) (quoting FLM I, 973 N.E.2d at 1179 (Bradford, J., concurring in result)). Cincinnati does not ask us to reconsider that determination on rehearing.
[¶ 3] Instead, Cincinnati directs us to the following coverage exclusion in the policy:
This insurance does not apply to:
a. Expected or intended injury