COA orders trial over 1 issue in contaminated development land suit

The Indiana Court of Appeals has ordered a trial on the issue of whether the known loss doctrine would bar coverage of an insurance policy held by the owner of land sold for a housing development that later was found to have been contaminated with toxic waste. A builder sued the landowner, claiming he knew of the potential contamination and failed to inform the builder.

George Kopetsky and Durabuilders, now KB Home Indiana Inc., entered into an agreement in 1998 where KB Home would purchase lots in a housing development being developed by Kopetsky. He indicated in the agreement that he was unaware of any contamination in Cedar Park at the time. KB Home became aware that some of the lots it had purchased contained contaminants from a nearby business and filed its lawsuit in 2007 against Kopetsky and those responsible for the contamination.

KB Home alleged that Kopetsky knew in 2002 some of the lots were contaminated but waited until 2004 to tell KB home of the problem. KB purchased more than 60 lots during that time.

Kopetsky’s commercial general liability insurance carrier, Indiana Insurance Co., in 2009 sought a declaration that it had no duty to defend or indemnify him in the lawsuit. The trial court ruled against the insurance company. His wife, Patricia, was substituted as a party after Kopetsy passed away in 2010.

The case, Indiana Insurance Company v. Patricia Kopetsky, and KB Home Indiana Inc., 49A02-1304-PL-340, brings up an issue of first impression. The policies preclude coverage for bodily injury or property damage for which the insured is obligated to pay damages by reason of the assumption of the liability in a contract or agreement. The judges agreed with Kopetsky that while he may be held liable for entering into the agreement and breaching it, this is not the same thing as assuming liability pursuant to it.

“Although our research has uncovered no Indiana case precisely on point, today we explicitly endorse the proposition that ‘assumed’ liability is liability originally incurred by a third party but then taken on by another,” Judge Cale Bradford wrote. “Today we join those jurisdictions who have held that contractual liability exclusions in CGL policies bar coverage not for liability incurred by a contract breach but, rather, for liability assumed from a third party, which seems to be the majority position by a wide margin.”

The judges held that KB Home successfully alleged “property damage” caused by an “occurrence” pursuant to the policies, and that the policies’ “expected and intended” and “contractual liability” exclusions do not work to bar coverage. But the designated evidence generates a question of fact as to whether the known loss doctrine would bar coverage. There is evidence showing that Kopetsky was aware of the contamination in Cedar Park before the effective dates of the first of his policies with Indiana Insurance.  The case is remanded for trial on the known loss doctrine issue.