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Court of Appeals of Indiana, Fourth District
August 11, 1994, Filed
[*849] CHEZEM, J.
Appellant-plaintiff, Great Lakes Chemical Company ("Great Lakes"), appeals the [**2] trial court's grant of summary judgment in favor of appellees-defendants, International Surplus Lines Insurance Company ("ISLIC") and First State Insurance Company ("First State"). We reverse and remand.
Great Lakes presents three issues for our review:
I. Whether the "pollution exclusion" clauses contained in the excess liability policies issued by ISLIC and First State excluded coverage for the claims in the underlying lawsuits filed against Great Lakes;
II. Whether ISLIC had a duty to defend Great Lakes in the underlying lawsuits; and
III. Whether the ISLIC and First State insurance policies covered the damage alleged in the underlying lawsuit by the City of Fresno.
Facts and Procedural History
Great Lakes brought this action for declaratory judgment seeking a determination that ISLIC and First State 1 had a duty to defend and indemnify Great Lakes in thirteen underlying lawsuits filed against Great Lakes.
In the mid 1960's, Great Lakes began manufacturing and selling pesticide products containing ethylene dibromide (EDB). These products were required to be, and were, registered with both federal and state governments before their sale and application. The EDB products were intended to be used as a soil fumigant pesticide to control nematodes and other pests. The pesticides were applied by injecting them directly into the ground using a tractor driven applicator.
In 1983, the United States Environmental Protection Agency banned the use of EDB as a soil fumigant pesticide. Subsequently, various persons and communities brought actions for damages against Great Lakes claiming soil and groundwater contamination caused by EDB. Great Lakes sought indemnity and defense costs against ISLIC and First State under various policies of excess liability insurance that had been issued from 1971 to 1979. ISLIC and First State denied coverage under the policies. Great Lakes then brought an action for declaratory judgment seeking a determination of rights under the policies. Both sides moved for summary judgment. The trial court granted summary judgment in favor of ISLIC and First State finding as a [**4] matter of law that there was no duty to defend or indemnify Great Lakes in any of the underlying lawsuits. Great Lakes appeals.
Discussion and Decision
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
638 N.E.2d 847 *; 1994 Ind. App. LEXIS 1038 **
GREAT LAKES CHEMICAL CORPORATION, Appellant-Plaintiff, v. INTERNATIONAL SURPLUS LINES INSURANCE COMPANY, and FIRST STATE INSURANCE COMPANY, Appellees-Defendants.
Subsequent History: [**1] Order Granting Transfer Vacated; Opinion Certified as Final May 11, 1998. Rehearing Denied October 11, 1994. Transfer Granted June 25, 1995. Appellee's Petition for Transfer Granted June 25, 1995.
Prior History: APPEAL FROM THE FOUNTAIN CIRCUIT COURT. The Honorable Vincent F. Grogg, Judge. Cause No. 23C01-8711-CP-263.
Disposition: Reversed and remanded.
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Civil Procedure, Summary Judgment, Entitlement as Matter of Law, General Overview, Appellate Review, Genuine Disputes, Materiality of Facts, Insurance Law, Claim, Contract & Practice Issues, Policy Interpretation, Question of Law, Ordinary & Usual Meanings, Ambiguous Terms, Unambiguous Terms, Plain Language, Construction Against Insurers, Reasonable Expectations, Reasonable Person, Commercial General Liability Insurance, Exclusions, Contractual Liabilities, Exclusions, Entire Contract, Liability & Performance Standards, Good Faith & Fair Dealing, Duty to Defend, Business Insurance, Coverage, Triggers, Products & Workmanship, Occurrences