Decision Date17 March 2003
Docket NumberNo. 49A02-0206-CV-503.,49A02-0206-CV-503.
Citation785 N.E.2d 586
CourtIndiana Appellate Court
PartiesCINERGY CORPORATION, PSI Energy, Incorporated, and The Cincinnati Gas & Electric Company, Appellants-Plaintiffs, v. ST. PAUL SURPLUS LINES INSURANCE COMPANY, Aetna Casualty & Surety Company, Allianz Underwriters, Inc., American National Fire Insurance Company, Associated Electric & Gas Insurance Services, Ltd., California Union Insurance Company, Employers Mutual Insurance Company, Energy Insurance Mutual, Ltd., First State Insurance Company, Great American Insurance Company, Harbor Insurance Company, Highlands Insurance Company, Insurance Company of the State of Pennsylvania, International Insurance Company, International Surplus Lines Insurance Co., Lexington Insurance Company, National Union Fire Insurance Company of Pittsburgh, Pa., Republic Insurance Company, Royal Indemnity Company, Safety Mutual Casualty Corporation, Transamerica Premier, and Underwriters at Lloyds, London, Appellees-Defendants.

George M. Plews, Frederick D. Emhardt, Plews Shadley Racher & Bruan, Indianapolis, IN, Donald P. Bogard, Plainfield, IN, Attorneys for Appellants.

Bryce H. Bennett, Jr., Michael Patrick Dugan, Riley Bennett & Egloff, Indianapolis, IN, Jan M. Michaels, Steven Schulwolf, Fedota Childers & May, Chicago, IL, Attorneys for Appellees.


BAILEY, Judge.

Case Summary

Cinergy Corporation, PSI Energy, Inc., and The Cincinnati Gas & Electric Co. (collectively, Cinergy) challenge two trial court determinations that the Hendricks Superior Court, not the Marion Superior Court, should adjudicate Cinergy's dispute with St. Paul Surplus Lines Insurance Company (St. Paul), and with multiple other insurance carriers, concerning coverage for environmental damage.1 We affirm.


Cinergy presents four issues, which we consolidate and restate as:

I. Whether the Marion Superior Court properly dismissed Cinergy's declaratory judgment action on the ground that the same action was pending in Hendricks County;

II. Whether the Hendricks Superior Court is an incorrect venue pursuant to Indiana Trial Rule 75(A) where "service of suit" clauses in some insurance policies provided that, at Cinergy's request, the insurers would submit to the jurisdiction of any court of competent jurisdiction within the United States; and

III. Whether the Hendricks Superior Court was required to stay or dismiss St. Paul's declaratory judgment action under Indiana Trial Rule 42(D) or, in the alternative, whether both the Hendricks County Action and the Marion County Action should proceed.

Facts and Procedural History

PSI, an Indiana corporation, owns and operates a number of electrical generating plants in Indiana. CG&E operates such plants in Ohio and Kentucky. Cinergy Corporation resulted from the 1994 merger of PSI Resources, Inc., the parent of PSI, and CG&E. St. Paul had issued one insurance policy to PSI2 for the period October 31, 1983 to October 31, 1984 (first St. Paul policy), and another to CG&E, effective July 1, 1985 to July 1, 1986 (second St. Paul policy).

In early 2000, the United States of America filed an amended complaint against Cinergy, averring environmental damages. United States v. Cinergy Corp., PSI Energy, Inc., Cincinnati Gas & Electric Co., No. IP99-1693-C-Y/G (S.D. Ind., amended complaint filed Mar. 1, 2000). The gravamen of the action is that, in the 1980s and 1990s, Cinergy improperly modified three generating stations in Indiana and one in Ohio, causing excessive emissions of air pollutants. Without mentioning a specific policy, Cinergy notified St. Paul of the underlying action in a letter requesting defense and indemnity. On October 31, 2000, St. Paul filed a fifteen-count Complaint for Declaratory Judgment in Hendricks County, PSI's principal place of business (the Hendricks County Action), seeking a determination of no coverage under the first St. Paul policy. Cinergy answered and filed a counterclaim. In the course of discovery, St. Paul requested the names of other insurers, policy periods, and insurance limits. Objecting on grounds of burden and ambiguity, Cinergy did not provide those names.

The trial court set the case for trial and ordered the parties to negotiate a case management order (CMO) and confidentiality agreement. On December 31, 2001, the court entered a CMO giving the parties ninety days to add parties and to amend pleadings without leave of court. After March 31, 2002, the pleadings were to be amended in accordance with the ordinary application of the Indiana Trial Rules. On February 15, 2002, before ninety days had elapsed, Cinergy filed its own Complaint for Declaratory Judgment and Damages in Marion County (the Marion County Action), naming as defendants St. Paul and twenty-one other insurers from whom the company had purchased insurance during the relevant time.3 Ninety-three additional insurance contracts were implicated. That same month, Cinergy asked the Hendricks Superior Court to exercise its discretion under Trial Rule 42(D) to stay or dismiss the Hendricks County Action. The court denied that motion on March 6, 2002, and Cinergy did not appeal that order.

Meanwhile, on March 5, 2002, before the case management order deadline, St. Paul amended its Hendricks County complaint by adding as "Additional Plaintiff Insurers" the twenty-one insurer-defendants named by Cinergy in the Marion County Action. St. Paul also added two counts: Count XVI sought a determination of the rights and obligations of the additional plaintiff insurers; Count XVII sought a determination of St. Paul's rights and obligations under the second St. Paul policy. St. Paul then moved to dismiss the Marion County Action under Indiana Trial Rule 12(B)(8), claiming that the same action was pending in Hendricks County.

Similarly, Cinergy filed a Motion to Dismiss Amended Complaint in the Hendricks Superior Court. In essence, Cinergy argued that its Marion County Action was the first action pending and that "service of suit" provisions gave it the right to select a forum. Cinergy also asked the Hendricks Superior Court to exercise its discretion to stay or dismiss the action filed there.

On May 31, 2002, the Marion Superior Court granted St. Paul's motion to dismiss the Marion County Action. The trial court did not articulate reasons for its decision. The next month, on June 17, 2002, the Hendricks Superior Court denied Cinergy's motion to dismiss the Hendricks County Action. The trial court noted there was no longer a case pending in Marion County and concluded that, even if the Marion County Action were still pending, Cinergy's motion would fail because the Hendricks County Action was the first filed under Indiana Trial Rules 12(B)(8) and 15(C). The court also rejected Cinergy's argument that the service of suit provision, found in a minority of insurance contracts, gave Cinergy the right to select a new forum for the dispute some sixteen months after St. Paul had commenced the action. Cinergy appeals both the Marion County and Hendricks County rulings.4

Discussion and Decision
I. Same Action Pending under Trial Rule 12(B)(8)

Cinergy first contends that the Marion Superior Court erroneously granted St. Paul's motion to dismiss the Marion County Action. As a general principle, when an action is pending before one Indiana court, other Indiana courts must defer to that court's authority over the case. Rios v. Rios, 717 N.E.2d 187, 190 (Ind.Ct.App.1999). Courts observe such deference in the interests of fairness to litigants, comity between and among the courts of this State, and judicial efficiency. Id.

Trial Rule 12(B)(8) implements this principle by allowing dismissal of an action on the ground that the same action is pending in another Indiana court. Davidson v. Perron, 716 N.E.2d 29, 35 (Ind.Ct. App.1999).5 Thus, the Rule prevents two courts from concurrently entertaining the same case. Crawfordsville Apartment Co. v. Key Trust Co., 692 N.E.2d 478, 480 (Ind.Ct.App.1998). The determination of whether two actions being tried in different state courts constitute the same action depends on whether the outcome of one action will affect the adjudication of the other. Davidson, 716 N.E.2d at 35. That outcome determinative test requires that one of two contemporaneous lawsuits be dismissed where the parties, subject matter, and remedies are substantially the same in both actions. Ind. & Mich. Elec. Co. v. Terre Haute Indus., Inc., 467 N.E.2d 37, 40 (Ind.Ct.App.1984).

Here, the parties agree that the Hendricks County Action as amended and the Marion County Action are substantially the same case. When two courts have concurrent jurisdiction over the same case, the jurisdiction of the court first acquiring such jurisdiction is deemed exclusive so that the case is "pending" within the meaning of Trial Rule 12(B)(8). Pivarnik v. N. Ind. Pub. Serv. Co., 636 N.E.2d 131, 135 (Ind.1994). In Indiana, jurisdiction over a case becomes exclusive in the court in which the case is first validly instituted. Id. In order to determine which case was first filed under the Rule, we determine whether St. Paul's amendment relates back to the original filing of its declaratory judgment action. If relation back applies, the Hendricks County Action is the first validly initiated action, even though St. Paul amended its complaint after Cinergy filed the Marion County Action.

A. Relation Back under Trial Rule 15(C)

To resolve the issue, we initially turn to Indiana Trial Rule 15(C), which provides in pertinent part:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within one hundred and twenty (120) days of commencement of the

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