In re The Marriage of Thomas Leo MULLINS, Appellant-Respondent, v. Diane Mullins MATLOCK, Appellee-Petitioner.
No. 64A03-9307-CV-00227
Court of Appeals of Indiana, Third District
Aug. 15, 1994
Transfer Denied Dec. 14, 1994.
Great Lakes contends that the language of the polices is clear: the policies provided coverage for physical injury to property which occurs during the policy period. We agree. The City of Fresno complaint alleges that groundwater was contаminated by the EDB pesticides which were applied to the local soil from 1955 to 1982. ISLIC and First State argue that no damage to the City occurred until 1989, long after the policies had expired, when the groundwater regulation was changed. ISLIC and First State, however, confuse damage to the City and damage to the groundwater. The policies prоvide coverage for damage to property, as long as that damage occurs during the policy period. Here, the damage was contamination of thе groundwater by application of EDB to the soil. When the City incurred “damages,” i.e. the cost of cleanup or of other measures to replenish the contaminatеd groundwater, is not relevant to when damage to property occurred for purposes of determining coverage under the policies.
ISLIC and First State cite United States Fidelity & Guar. v. American Ins. Co. for the general rulе that “the time of the occurrence of an accident within the meaning of an indemnity policy is not the time the wrongful act was committed but the time when the complaining party was actually damaged.” (1976), 169 Ind.App. 1, 7, 345 N.E.2d 267, 270. In USF & G, a homeowner sued the manufacturer of the bricks used in the construction of his home. The issue presented was, between the many liability insurers оf the brick manufacturer over the period, which insurer was obligated to cover the damage to the structure. The insurers agreed with the general rule quoted above, and that when applied to their factual situation provided that the policy in effect at the time of the defective bricks’ manufacture was not liable becausе the damage for which recovery was sought was damage to the structure into which the bricks were incorporated.5 We agree with the general rule as set out in USF & G, and its application in that case. We disagrеe however, with the manner in which ISLIC and First State apply the general rule to the City of Fresno case.
When applied to the City of Fresno case, the general rule simply holds that the time when the EDB pesticides were manufactured is not the time of the occurrence which triggers coverage, but the trigger for coverage is the time when the complaining party was damaged. Here, the City was damaged when the EDB pesticides were applied to the soil and contaminated the groundwater. The general rule does not hold that the time the City incurred “damages” is the time of the occurrence which triggers coverage under the ISLIC and First State policies.
The trial court‘s entry of summary judgment on this issue is reversed and summary judgment is ordered enterеd for Great Lakes.
Reversed and remanded.
RILEY and HOFFMAN, JJ., concur.
Christina J. Miller, Theodoros, Theodoros & Rooth, P.C., Merrillville, for appellant.
Duane W. Hartman, Blachly, Tabor, Bozik & Hartman, Valparaiso, for appellee.
HOFFMAN, Judge.
Appellant-respondent Thomas Leo Mullins appeals from a judgment modifying the dissolution order ending his marriage to appellee-petitioner Diane Mullins Matlock.
Shortly after Mullins’ employment with Continental Can ended, a class action suit was brought by its former employees against the сompany for improper layoffs and firings. While this lawsuit was pending and while they were married, Matlock and Mullins periodically received information regarding its progress. Howеver, at no time during their marriage was Mullins made a class member.
In July 1990, Matlock and Mullins were divorced. With the assistance of her attorney, the two parties prepared a property settlement agreement which was merged into the court‘s final order of dissolution. Although the Continental Can litigation was discussed during divorce negotiations, Mullins and Matlock determined that his interest in the lawsuit was negligible. As a result, no provision was included to address this issue.
In early 1991, Matlock received information that Mullins was to possibly become a member of the class. Acting on this information, in May 1991, she requested modification of the final dissolution order pursuant to
After the Continental Can litigation was settled, on January 18, 1992, Mullins was made a member of the class. His share of the settlement was $47,500.00.
In July 1993, the trial court conducted a hearing on Matlock‘s motion. The trial court concluded that Mullins’ award was “in the nature of either a pension and/or wages and subject to distribution as part of the marital estate.” Aсcordingly, the dissolution order was modified to allow Matlock one-half of Mullins’ award. This appeal ensued.
Mullins raises three issues on appeal. However, one issue is dispositive: whether the trial court erred by holding Mullins’ award to be a marital asset subject to equal distribution.
See Libunao v. Libunao (1979), 180 Ind. App. 242, 388 N.E.2d 574, 577, reh. denied (court may consider future value of an asset but final distribution must be just and equitable in light of present vested interest of particular fund since a distribution based on contingent values could result in no distribution at all); Savage v. Savage (1978), 176 Ind.App. 89, 374 N.E.2d 536, 538-539 trans. denied (monthly pension payments did not qualify as “property” subject to equal distribution as a marital asset because husband had only contingent future interest rather than vested present interest in such payments); Wilcox v. Wilcox (1977), 173 Ind.App. 661, 365 N.E.2d 792, 795 (no present vested present interest in future earnings, thus, not properly considered “property” subject to distribution as marital asset).
A chose in action, not vested but rather contingent and speculative in nature and in value, is not capable of division and thus not marital property subject to equal distribution under the Dissolution of Marriage Act.
See
Since Mullins did not become a member of the Continental Can class during the parties’ marriage, his interest in thе lawsuit was merely speculative and contingent. It was not vested property, capable of division at the time of their divorce. Thus, the trial court erred in modifying the final decree to allow Matlock an equal share of Mullins’ settlement award. There being error, the decision of the trial court is reversed.
Reversed.
GARRARD, J., concurs.
STATON, J., dissents with opinion.
STATON, Judge, dissenting.
I dissent. The instant litigation concerns a property right (i.e., wages) which accrued during the parties’ marriage; upon marital dissolution, all marital property is to be equitably divided pursuant to
Mullins was employed by Continental Can Company during the parties’ marriage; the employees brought suit against Continental during the parties’ marriage. The suit sought to recover wages due employees who had been laid off.
In class actions, eligible class members may initially elect to execute a Request for Exclusion from the Class, but later opt for inclusion. Once Mullins had received a favorable marital property settlement, he could opt for inclusion within the class of employees and pocket the proceeds ($47,500.00).
The majority states that Mullins’ interest in the lawsuit was “speculative and contingent” because he did not become a member of the Continental Can class during the marriage. However, his right to collect full wages and to participate in the suit accrued during the marriage; he merеly delayed the exercise of his rights.
A spouse may not selectively determine that some marital assets are to be included within the marital pot and others are not. Huber v. Huber (1992), Ind.App., 586 N.E.2d 887, 889, trans. denied. Likewise, a spouse should be unable to selectively change the character of an asset, rendering it “speculative” by his own action. Mullins should not be permitted to manipulate his assets in such a manner as to deprive his former spouse of her rightful share.