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The Court of Appeals of Indiana will hear oral arguments this week and next in cases involving a company seeking a determination of rights under policies sold by various insurers and a dispute over blasting procedure at a quarry that went wrong.
The first case, In Technicolor, et al. v. Insurance, et al., 22A-PL-2094, will be heard at 10 a.m. Friday.
The case centers around a group of more than 1,000 former workers at factories in Taiwan that are suing Technicolor in Taiwan for injuries allegedly suffered due to alleged exposure to chlorinated solvents at those factories and in adjacent dormitories, according to the Court of Appeals.
According to an appellants’ brief filed in the case, none of Technicolor’s insurers agreed to defend the company, so Technicolor filed suit on Oct. 9, 2018, against those insurers in Marion Superior Commercial Court.
The brief states that in 2016, a group representing more than 1,000 former workers sued Technicolor, making it the second such mass toxic tort action against Technicolor in Taiwan, with the first lawsuit brought in 2004.
Technicolor filed a complaint for damages and declaratory relief in Marion Superior Commercial Court seeking a determination of their rights under comprehensive general liability policies, both primary and umbrella, sold by various insurers.
The company sought a defense and, if necessary, indemnity from its insurers, which include Allianz Global Risks US Insurance Company, Zurich American Insurance Company, American Guarantee and Liability Insurance Company, AXA Insurance Company, XL Insurance Company and others.
On Dec. 24, 2019, Technicolor filed its motion for partial summary judgment on the duty to defend and certain defense costs against AXA and all but one defendant insurer, according to the appellants’ brief.
After several extensions of time, AXA filed a cross-motion for partial summary judgment on duty to defend and a combined brief in support of its cross-motion and in opposition to Technicolor’s motion.
As part of a July 19, 2021, summary judgment order, the trial court found AXA owed no duty to defend Technicolor under any of the AXA primary policies as a matter of law because the claims of the lawsuit fell outside the policies’ coverage territory.
The trial court issued an order denying Technicolor’s motion to revise and granting AXA’s motion for summary judgment on Aug. 3, 2022.
“While there is language that allows for AXA to cover damages outside of those territories as part of a settlement, the Court has found that AXA is not obligated to provide coverage to Technicolor, and thus, AXA’s refusal to settle for any amount does not constitute bad faith conduct,” the order stated.
Technicolor appealed, arguing the trial court erred primarily by not applying Indiana’s rules of insurance policy interpretation. If it had applied those rules, it would have recognized that the definition of “coverage territory” in the AXA primary policies does not preclude coverage.
The scheduled panelists for the Technicolor case are Judges L. Mark Bailey and Terry Crone and Senior Judge John Baker.
Then on Tuesday, the COA will hear arguments at 2 p.m. in Cave Quarries, Inc. v. Warex, LLC, 22A-CT-1916.
In that case, Cave Quarries Inc. hired Warex LLC to place and ignite explosives on its property to extract limestone. In 2021, a blasting procedure went awry and destroyed Cave Quarries’ asphalt plant, according to the Court of Appeals.
Cave Quarries sued Warex, alleging strict liability and negligence.
The parties filed cross-motions in Orange Circuit Court for summary judgment on the issue of strict liability, and the trial court denied both motions.
“The Plaintiff was not a mere innocent bystander to the Defendant’s actions nor the harm that resulted. The Defendant’s actions, looking at the facts in the non-moving party’s favor, were done at the direction of the Plaintiff: the location of the charges, the number of charges, and the amount of the explosives used were all the result of Plaintiff decisions,” the order, issued June 9, 2022, stated.
On interlocutory appeal, Cave Quarries is arguing Warex should be held strictly liable for damage to its property.
On cross-appeal, Warex disputes whether the doctrine of strict liability applies in the case.
If the doctrine does apply, Warex claims it is not responsible for Cave Quarries’ loss because Cave Quarries assumed any risk of harm caused by the blasting.
“Cave Quarries hired Warex to conduct blasting and directed Warex to conduct those blasting activities within the ‘radius of risk’ to the asphalt plant, which was no more than 20 to 25 feet away from the blasting. Cave Quarries not only directed Warex to this location, but it directed those blasting activities to continue for four years, knowing that each blast put the asphalt plant at risk,” the brief states.
The scheduled panelists are Senior Judge Margret Robb, Judge Terry Crone and Judge Dana Kenworthy.
Both cases will be heard in the COA courtroom on the fourth floor of the Indiana Statehouse. They will also be livestreamed.
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