On April 7, 2011, the Indiana Supreme Court issued two important orders regarding environmental law and insurance coverage. The first denied a petition to transfer filed by Samuel and Delores Neal and Hometown Transmission, Inc. (the “Neals”) in Samuel Neal, et al v. William J. Cure, et al, 49A04-0908-CV-468. The second granted transfer in the case of State Auto. Mut. Ins. Co. v. Flexdar, Inc., 49S02-1104-PL-199. The Supreme Court has yet to issue an opinion, but has set the case for oral argument on May 5, 2011.
As to the first order, Taft has previously written about the Cure litigation in the Marion Superior Court, and the order denying the Neals’ appeal to the intermediate appellate court. By a vote of 3 to 2 (Justices Dickenson and David voted to grant transfer), the Supreme Court declined to accept jurisdiction. In doing so, it upheld the Court of Appeals’ decision, and declined the Neals’ plea to expand Indiana’s common law and Environmental Legal Action statute to hold landlord’s strictly liable for contamination caused by a tenant. Taft’s Environmental Law Practice Group represented the Cures. The Neals were represented by Plews, Shadley, Racher and Braun, LLP.
As to the second order, Taft has previously written regarding the Flexdar litigation. This case is significant because the appellant, State Auto, is seeking to limit Indiana precedent regarding the ambiguity of the Absolute Pollution Exclusion found in Commercial General Liability (“CGL”) insurance policies. Since 1996, these clauses have been held to be vague and ambiguous, and have been read out of CGL policies. Consequently, insurance coverage has been available to Indiana insureds to help defray the cost of defending lawsuits brought as a result of environmental contamination as well as the cost of cleaning up environmental contamination. Taft has previously written about the Absolute Pollution Exclusion in CGL policies. Taft represents Eli Lilly & Company, Vectren Corporation, Citizens Energy Group, Indiana Manufacturers Association, and Indiana Petroleum Marketers and Convenience Stores Association as amici curiae in the appeal.