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WellPoint, Inc. v. National Union Fire Insurance Co. of Pittsburgh, PA

Supreme Court of Indiana

April 22, 2015

WELLPOINT, INC. (F/K/A ANTHEM, INC.) AND ANTHEM INSURANCE COMPANIES, INC., Appellants (Plaintiffs),
v.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, AIG EUROPE (U.K.) LIMITED, NEW HAMPSHIRE INSURANCE COMPANY, CONTINENTAL CASUALTY COMPANY, ARROWOOD INDEMNITY COMPANY, TWIN CITY FIRE INSURANCE COMPANY, LIBERTY MUTUAL INSURANCE COMPANY (U.K.) LIMITED, AND CERTAIN UNDERWRITERS AT LLOYDS, Appellees (Defendants)

Page 717

Appeal from the Marion Superior Court, No. 49D10-507-PL-26425. The Honorable David J. Dreyer, Judge. On Transfer from the Indiana Court of Appeals, No. 49A05-1202-PL-92.

ATTORNEYS FOR APPELLANTS: Robert D. MacGill, Charles P. Edwards, Christian P. Jones, Mark D. Crandley, Barnes & Thornburg LLP, Indianapolis, Indiana; Dan J. Hofmeister, Jr., Kevin D. Tessier, Reed Smith LLP, Chicago, Illinois.

ATTORNEYS FOR APPELLEE, CONTINENTAL CASUALTY COMPANY: Stephen J. Peters, David I. Rubin, Plunkett Cooney, P.C., Indianapolis, Indiana; Michael M. Marick, Rebecca R. Haller, Meckler Bulger Tilson Marick & Pearson LLP, Chicago, Illinois.

ATTORNEYS FOR APPELLEE, TWIN CITY FIRE INSURANCE COMPANY: James W. Riley, Jr., Riley Bennett & Egloff, LLP, Indianapolis, Indiana; John E. Black, Jr., Peter F. Lovato, Skarzynski Black LLC, Chicago, Illinois; Mark E. Haddad, Jonathan F. Cohn, Eric D. MacArthur, Sidley Austin LLP, Washington, DC.

ATTORNEYS FOR THE AMERICAN INSURANCE ASSOCIATION, THE NATIONAL ASSOCIATION OF MUTUAL INSURANCE COMPANIES, AND THE PROPERTY CASUALTY INSURERS ASSOCIATION OF AMERICA, AMICI CURIAE: John C. Trimble, Richard K. Shoultz, Lewis Wagner, LLP, Indianapolis, Indiana; Ronald P. Schiller, Hangley Aronchick Segal Pudlin & Schiller, Philadelphia, Pennsylvania.

ATTORNEYS FOR AMERICA'S HEALTH INSURANCE PLANS, AMICI CURIAE: Nicole J. Webb, Squire Sanders LLP, Cincinnati, Ohio.

ATTORNEYS FOR UNITED POLICYHOLDERS, AMICI CURIAE: Ronald G. McLean, Ronald G. McLean Law Office, Indianapolis, Indiana; Amy R. Bach, United Policyholders, San Francisco, California.

Dickson, Justice. Rush, C.J., and David and Massa, JJ., concur. Rucker, J., concurs in result.

OPINION

Page 718

Dickson, Justice.

Anthem, Inc. is a large managed health care organization. At all times relevant to this litigation, it was self-insured for errors and omissions (E& O) liability and had purchased policies from other insurers to reinsure its E& O liabilities. After Anthem settled certain multi-district litigation without admitting liability, it sought indemnification from its reinsurers, some of which denied coverage and successfully sought summary judgment. We reverse the trial court and in large part grant summary judgment for Anthem.

The litigation culminating in this instant appeal has been ongoing for over a decade. Anthem[1] had set up a complex and multi-tiered insurance arrangement to reinsure itself for E& O liability. Under this arrangement, Anthem was its own primary and excess insurer for E& O liability, with a certificate of reinsurance on its primary policy issued by National Union Fire Insurance Company (National Union) and numerous certificates of reinsurance on its excess policies issued by a bevy of additional reinsurers (together, Excess Reinsurers). Both Anthem's excess policies and the reinsurance policies " follow form," i.e. incorporate all the terms and conditions of the primary policy Anthem issued itself.[2]

Beginning in 1998, Anthem and other managed care organizations and medical service payors (collectively, MCOs) were confronted by various lawsuits alleging that the MCOs had engaged in a pattern of failing to pay claims in a ...


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