by Ryan T. Leagre (Attorney Profile) [i]
Plews Shadley Racher & Braun LLP
1346 N. Delaware St.
Indianapolis, IN 46202-2415
The ability of a policyholder to recover pre-tender costs is an evolving area of insurance coverage law. In Dreaded, Inc. v. St. Paul Guardian Insurance Company, the Indiana Supreme Court held that, under the facts of that case, a policyholder could not recover the legal expenses it incurred defending itself from a claim asserted by the Indiana Department of Environmental Management (“IDEM”) prior to giving notice of or tendering the claim to its insurer. . And while Dreaded was limited to the facts of that case, the Indiana Court of Appeals in Travelers Insurance Company v. Maplehurst Farms, Inc. interpreted Dreaded to mean that pre-tender costs are simply not recoverable. . The courts’ decisions in Dreaded and Maplehurst rested, in part, on two grounds: (1) an insurer’s duty to defend its policyholder does not arise until the policyholder provides notice of the claim;  and (2) the insurance policy provision requiring a policyholder to give notice of a claim to the insurer is a condition precedent to coverage. .
Indiana courts should reconsider the holdings in Dreaded and Maplehurst. . These holdings result in the forfeiture of coverage, which is unfair and disfavored under Indiana law,  and ignore the realities of long-tail environmental claims. . To begin, Dreaded’s explanation of the duty to defend is incomplete. An insurer’s duty to defend its policyholder is not triggered by notice of the claim, but rather by the existence of a potentially covered claim. .
by Drake T. Land
J.D. Candidate, 2015, Indiana University Robert H. McKinney School of Law
Indiana International & Comparative Law Review: Executive Articles Development Editor
B.S., 2007, Ball State University; Muncie, Indiana
Editor’s note: Mr. Land’s article was selected from submissions in the Indiana Law Review‘s first writing competition.
Following the introduction of Genetically Modified Organisms (“GMOs”) into the food market in 1994,  consumer groups and multiple legislative bodies have fought to restrict their sale and label GMOs differently than traditionally developed foods. . This push to restrict the sale, or label, of GMOs is born of the fear that GMOs will have unforeseen consequences to human health and/or the environment. . These fears have been shown to be unrealized after twenty years of market availability  and, although restrictions on the sale of GMOs and mandatory labeling is the law in most European countries,  labeling initiatives have not achieved the same success in the United States’ federal and state governments. . The European Union “has probably the strictest GMO regulations in the world though these derive rather from political considerations, rather than being based upon scientific principles.” . Unlike the European Union (“the EU”), the United States Constitution explicitly “promote[s] the progress of science,”  and under this framework the United States has provided more protection to the development and retail of GMOs.
All currently grown crops have been developed through genetic modification. . “By selectively breeding plants and animals with the most desirable traits, our predecessors transformed organisms’ genomes, turning a scraggly grass into plump-kerneled corn, for example.” . Following Mendel’s discovery of the inheritance of genetic traits, farmers and scientists alike have been using selective breeding and hybridization to alter food crops to make them more reliable and marketable. . “Today, there are virtually no food products in supermarkets that have not been improved in some manner by selective breeding.” .