 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
EBSCO Industries6/9/2000
EBSCO Industries, Inc., and The Home Insurance Company ("Home") filed an action in the Shelby Circuit Court against Luxor Corporation, Roxul Corporation, Ideal School Supply Corporation, Educational Publishing Corporation (all these defendants will hereinafter be referred to collectively as "Luxor"), and Royal Insurance Company, seeking indemnification and contribution. Royal filed a counterclaim against EBSCO and Home and a cross-claim against Luxor. Royal, Luxor, EBSCO, and Home all filed separate summary-judgment motions. The trial court denied the summary-judgment motion filed by EBSCO and Home, but it entered summary judgments for both Royal and Luxor. EBSCO and Home appeal. We reverse and remand.
On July 2, 1992, EBSCO purchased the assets of Luxor Corporation from Luxor's parent corporation, Educational Publishing Corporation ("Educational"). Before the sale, Luxor had been insured on policies held by Educational. In September 1992, Educational informed Royal of the sale and requested that Royal "endorse all policies to show this sale and adjust the premium accordingly." Royal subsequently removed Luxor's name from all of Educational's policies except its "National Liability Policy." Because of a clerical error made by Royal, Luxor's name was never removed from this policy, and Luxor remained listed on this policy as an insured entity.
On December 14, 1992, Timothy Glenn Page died when a television cart -- manufactured, designed, and distributed by Luxor -- fell on top of him. Page's parents filed a lawsuit against Luxor in a Texas state court to recover damages for Timothy's death. However, the summons and the complaint were sent to EBSCO. EBSCO asked Luxor to defend. Luxor wrongfully said that it had no products-liability coverage. The Pages then substituted EBSCO for Luxor as a defendant. EBSCO settled the claim made by the Pages for $450,000. Home advanced this money to EBSCO. The Pages agreed to "file a notice of non-suit regarding the lawsuit" and to release EBSCO from any further liability. EBSCO and Home filed this present lawsuit against Luxor and Royal to recover the money paid to the Pages.
This case is essentially a coverage dispute between the insurance companies -- Home, which insures EBSCO; and Royal, which insures Luxor. Both sides argue that, based on the terms of the sale, they are not liable for this loss.
Luxor and EBSCO executed an agreement entitled "Asset Purchase Agreement," which set out the terms of the sale. Section 2.2 of that agreement is entitled "Liabilities Assumed"; it provides in pertinent part:
"(a) At the closing Buyer shall not be obligated to assume, and shall not assume, any of the liabilities and obligations of Seller, whether existing as of the Closing or asserted after the Closing and relating to events that occurred before the Closing, except Buyer shall assume and agree to pay, perform and discharge the following liabilities, obligations and commitments of Seller (liquidated or unliquidated, known or unknown, actual or inchoate, accrued, contingent or otherwise), which shall be assumed by Buyer at the Closing (the `Assumed Liabilities'):
"....
"(iii) all liabilities, obligations and commitments of Seller with respect to product liability and warranty claims (including the obligation to repair or replace all relevant products); provided that in the case of product liability claims, only to the extent such claims are first asserted or made after the Closing Date and only to the extent not covered by Seller's existing insurance coverage." (Emphasis added.)
EBSCO and Home contend that because Luxor was still listed as an insured on Educational's policy, they are
Page 1 2 3 Alabama Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|