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Thomson Inc. v. Insurance Co. of North America

Supreme Court of Indiana

May 15, 2015

THOMSON INC. n/k/a TECHNICOLOR USA, INC., Appellant (Cross-Appellee),
v.
INSURANCE CO. OF NORTH AMERICA n/k/a CENTURY INDEMNITY CO., et al., Appellees (Cross-Appellants)

Trial Court No. 49D07-0807-PL-30747.

Loretta H. Rush, Chief Justice of Indiana Dickson, David, and Massa, JJ., concur. Rush, C.J., dissents to the denial of transfer with a separate opinion, in which Rucker, J., joins.

Published Order

Loretta H. Rush, Chief Justice of Indiana

This matter has come before the Indiana Supreme Court on petitions to transfer jurisdiction, filed pursuant to Indiana Appellate Rules 56(B) and 57, following the issuance of a decision by the Court of Appeals. See Thomson Inc. v. Ins. Co. of N. Am., 11 N.E.3d 982 (Ind.Ct.App. 2014), reh'g denied. The Court has reviewed the decision of the Court of Appeals, and the submitted record on appeal, all briefs filed in the Court of Appeals, and all materials filed in connection with the requests to transfer jurisdiction have been made available to the Court for review. Also, the Court heard oral argument on the transfer petitions. Each participating member has had the opportunity to voice that Justice's views on the case in conference with the other Justices, and each participating member of the Court has voted on the petitions.

Being duly advised, the Court DENIES the petitions to transfer jurisdiction, and the Clerk is directed to certify the Court of Appeals decision as final.

Dickson, David, and Massa, JJ., concur. Rush, C.J., dissents to the denial of transfer with a separate opinion, in which Rucker, J., joins.

DISSENT

Rush, C.J., dissenting from the denial of transfer.

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.

Background and Procedural History

A class-action lawsuit in Taiwan alleges that between 1970 and 1992, solvents used at a now-defunct television factory contaminated the groundwater, causing injury to employees who were exposed both at work and after-hours in the nearby worker dormitories. Among other things, the Taiwan suit seeks to hold Indianapolis-based Thomson, Inc. vicariously liable, based on its ownership of less than one-hundredth of one percent of the Taiwanese entity that operated the factory. The Taiwan entity has sold the factory and retains no significant assets, so Thomson is managing the cleanup efforts at the factory, and its general counsel oversees defense of the Taiwan litigation.

This case, by contrast, seeks declaratory judgment on the extent of coverage under various commercial general liability (" CGL" ) policies owned by Thomson between 1991 and 2007 for both damage indemnity and defense costs of the Taiwan

Page 1040

litigation. At issue is the coverage available to Thomson as the named insured, to the Taiwanese subsidiary, to the Thomson affiliate in Bermuda that owns the vast majority of the subsidiary, or to Thomson SA, the French ...


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