Jennifer Nelson for www.theindianalawyer.com

Deciding an issue of first impression stemming from a fire that heavily damaged the Jefferson County courthouse in 2009, the Indiana Supreme Court on Wednesday decided Indiana should follow the “any insurance” approach in deciding when property owners waive subrogation rights in certain cases. In doing so, the justices rejected the “work versus non-work” approach that the Court of Appeals has used.

While renovating the Jefferson County courthouse six years ago, a roofing contractor sparked a fire that destroyed much of the courthouse. The damages were fully covered by Jefferson County’s property insurer, but the county, contractors and subcontractors involved in the renovation work dispute whose insurance company should cover the loss.

The contract between the county and Teton Corp. incorporated a 1987 version of the American Institute of Architects’ standard form into their contract for repair. The AIA contract waives subrogation rights for all “damages caused by fire or other perils to the extent covered by property insurance.”

The county sought to subrogate all damages unrelated to repairs, arguing the waiver only applies to construction-related damages. The contractors argued that all damages covered by the county’s property insurance policy are waived.

The trial court ruled in favor of the contractors, and the Indiana Court of Appeals affirmed in a split decision. The appeals court applied the “any insurance” approach, but Judge Elaine Brown believed the court should continue using the “work versus non-work” approach, under which the county would waive subrogation only for losses related to the work.

“We must decide whether, under the plain meaning of the AIA contract, property owners waive subrogation rights for construction damages by maintaining ‘all-risk’ property insurance policies that cover both their construction-related damages and their entire property. Our Court of Appeals has offered two competing approaches to resolve this question, mirroring a national split of authority. In a matter of first impression for this Court, we adopt the ‘any insurance’ approach, which applies the plain meaning of the waiver, and therefore hold Jefferson County’s subrogation claim is barred,” Chief Justice Loretta Rush wrote.

The plain meaning of the AIA subrogation waiver defines the scope of the waiver by the source and extent of the insurance coverage, not by the property damaged, the justices held.

Rush noted that the plain meaning of the AIA waiver is consistent with the majority of other courts that have interpreted similar AIA waivers.

“The ‘Work versus non-Work’ approach does have support in several other jurisdictions, but we believe that the ‘any insurance’ approach more faithfully tracks the plain meaning of the contract. We therefore resolve the split in authority created by the Court of Appeals (now-vacated) decision in this case and apply the ‘any insurance’ approach to bar Jefferson County’s claim,” Rush wrote in The Board of Commissioners of the County of Jefferson v. Teton Corporation, Innovative Roofing Solutions, Inc., Gutapfel Roofing, Inc., and Daniel L. Gutapfel, 72S04-1410-CT-642.

750,000 Indiana customers may be eligible for refund

INDIANPOLIS – Attorney General Greg Zoeller announced Indiana’s involvement in two more multi-state settlements with major mobile phone carriers – Sprint and Verizon – resolving allegations that the companies placed unauthorized charges for third-party services on peoples’ cell phone bills, a practice known as “mobile cramming.” Zoeller announced similar settlements with AT&T and T-Mobile in 2014.

An estimated 750,000 Indiana customers of Sprint and Verizon combined may be eligible for refunds that could exceed $120 million nationally.

Indiana is joined in the Sprint and Verizon settlements by the attorneys general of the other 49 states and the District of Columbia, the Consumer Financial Protection Bureau and the Federal Communications Commission (FCC).

Phone customers who have been “crammed” often have charges, typically $9.99 per month, for “premium” text message subscription services (also known as “PSMS” subscriptions) such as horoscopes, trivia, and sports scores that the consumers have never heard of or requested. All four mobile carriers announced they would cease billing customers for commercial PSMS in the fall of 2013.

“These collective settlements with the major cell phone providers for alleged mobile cramming will hopefully prevent overcharging schemes like this from occurring again,” Zoeller said. “However, people should always be on the lookout for unfair or deceptive billing practices. Read and understand the terms and charges of your monthly bills with all of your service providers. If something isn’t right, work with your provider to get it fixed or, if that doesn’t work, file a complaint with our office.”

Under the terms of the settlements, Sprint will pay $68 million and Verizon will pay $90 million.  Of these amounts, Sprint and Verizon are required to provide $50 million and $70 million, respectively, to customers who were victims of cramming. Sprint and Verizon will each distribute refunds to harmed consumers through redress programs that will be under the supervision of the Consumer Financial Protection Bureau. Sprint will also pay $12 million to the participating states and $6 million to the FCC, while Verizon will pay $16 million to the states and $4 million to the FCC.

Sprint and Verizon customers who believe they were “crammed” can submit claims under the redress programs by visiting www.SprintRefundPSMS.com and/or www.CFPBSettlementVerizon.com. On those websites, consumers can submit claims, find information about refund eligibility and how to obtain a refund, and can request a free account summary that details PSMS purchases on their accounts. Individuals with questions about the redress programs can visit the program websites or call the settlement administrators at: (877) 389-8787 (Sprint), and/or (888) 726-7063 (Verizon).

The settlements, like the settlements entered into by AT&T and T-Mobile in late 2014, require Sprint and Verizon to stay out of the commercial PSMS business – the platform to which law enforcement agencies attribute the lion’s share of the mobile cramming problem. Under each of the four settlements, the carriers, including Sprint and Verizon, must also take a number of steps designed to ensure that they only bill consumers for third-party charges that have been authorized, including the following:

·         The carriers must obtain consumers’ express consent before billing consumers for third-party charges, and must ensure that consumers are only charged for services if the consumers have been informed of all material terms and conditions of their payment;

·         The carriers must give consumers an opportunity to obtain a full refund or credit when they are billed for unauthorized third-party charges;

·         The carriers must inform their customers when they sign up for services that their mobile phone can be used to pay for third-party charges, and must inform consumers of how those third-party charges can be blocked if the consumers do not want to use their phone to pay for third-party products; and

·         The carriers must present third-party charges in a dedicated section of consumers’ mobile phone bills, must clearly distinguish them from the carrier’s own charges, and must include in that same section information about the consumers’ ability to block third-party charges.

Under the court ordered agreements, Indiana received $451,937.81 for its participation in the Sprint and Verizon settlements ($193,663.88 from Sprint, $258,273.93 from Verizon) to be deposited in the Consumer Protection Fund for use in future consumer protection enforcement, education, litigation or restitution.

Indianapolis – Governor Mike Pence concluded business in Beijing today learning how Indiana-headquartered Cummins Inc. (NYSE: CMI) is leading the way in innovation and production of clean technology at its Beijing Foton Cummins Engine Company.

“For Cummins, it starts in Indiana. Technology developed by Hoosiers in Columbus is powering Cummins engines built around the world, including here in China,” said Pence. “As Cummins grows and thrives in these markets, more high-wage jobs in engineering and R&D are created at home.”

Established in 2008, the Beijing Foton-Cummins facility (BFCEC) produces the Cummins ISF light duty engine and ISG heavy duty engine, both meet tough emission standards while achieving a high degree of fuel efficiency. Even though the engine platforms are targeted primarily for Chinese markets, their cutting-edge technology is a result of the collaboration of a global team, including more than 100 U.S. engineers, many of whom are based in Columbus, Indiana.

“We are thrilled  to show the Governor one of Cummins’  most successful joint ventures that delivers both economic and environmental benefits for our customers,” said Steve Chapman, vice president, China and Russia of Cummins. “As a truly global company, Cummins is well positioned to capture market opportunities in diverse geographic markets by leveraging strong engineering resources and rich market experiences from the U.S. and other places. This will not only fuel our growth in local market, but also creates value for our stakeholders in the U.S.”

As the largest independent maker of diesel engines in the world, Columbus, Indiana-based Cummins is a global power leader  developing and advancing cutting-edge solutions and products that produce high quality, clean diesel engines for customers around the world. In Indiana alone, the Fortune 160 company has approximately 9,000 employees at multiple locations across the state that design, make and sell products found in a broad range of on and off highway vehicles.

The company’s ties to China date back to 1975 when then-CEO J. Irwin Miller led the company’s first delegation to Beijing. Today Cummins is recognized as the largest foreign investor in the China diesel engine industry.

Later in the day, the Governor, First Lady and delegation traveled to Hangzhou, the capital city of Zhejiang Province, Indiana’s Chinese sister state. There, they co-hosted with Zhejiang officials a reception attended by more than 75 local business leaders.
Updates from the Governor’s jobs and economic development mission to China, including video clips and photos, will be posted throughout the trip here: http://in.gov/gov/China2015.htm.