FOR PUBLICATION

ATTORNEYS FOR APPELLANT:    ATTORNEY FOR APPELLEE:

MICHAEL A. WILKINS    LAURA S. REED
BRENT W. HUBER    Riley Bennett & Egloff
BRIAN E. BAILEY    Indianapolis, Indiana
Ice Miller
Indianapolis, Indiana

FEDERATED RURAL ELECTRIC      )

INSURANCE EXCHANGE,                )
                                   )
Appellant-Plaintiff,               )
                                   )
vs.                                )    No. 49A05-0305-CV-227
                                   )
NATIONAL FARMERS UNION             )
PROPERTY AND CASUALTY COMPANY,     )
                                   )
Appellee-Defendant.                )

2.    Whether Federated is entitled to summary judgment based on NFU’s alleged repudiation of its policies.

    We affirm.

NFU’s policies also contained an “other insurance” clause, which provides in part:
P. Other Insurance: This insurance is primary insurance, except when stated to apply in excess of or contingent upon the absence of other insurance. When this insurance is primary and the Insured has other insurance which is stated to be applicable to the loss on an excess or contingent basis, the amount of the Company’s liability under this policy shall not be reduced by the existence of such other insurance.

When both this insurance and other insurance apply to the loss on the same basis, whether primary, excess or contingent, the Company shall not be liable under this policy, for a greater proportion of the loss than that stated in the applicable contribution provision below[.]

    From May 1, 1985, through July 1991, Federated provided liability insurance coverage to REMC. Federated’s policies provided general liability coverage for property damage, including liability for stray voltage. Federated’s policies also contained an “all sums” provision, a definition of “occurrence,” and an “other insurance” provision, all of which are similar to NFU’s corresponding provisions. See footnote
    After the Fischers filed their complaint against REMC, Federated sent NFU a letter in November 1992 regarding the suit. Specifically, the letter confirmed that Federated had “coverage from May 1, 1985, to present” and requested that NFU confirm its coverage dates. Federated also informed NFU that “[d]efense of [the] matter [had] been assigned to Peter L. Obremskey, an attorney located in Lebanon, Indiana.” NFU did not respond to Federated’s letter.
    In February 1994, Federated sent another letter to NFU, which provided in relevant part:
Attached is a copy of a letter forwarded to your attention in late 1992, along with an additional copy of the Complaint served against our insured. Our file does not reflect any response from your end.

In any event, this case has not made a great deal of progress to date. Our information is that your company had the coverage prior to our first policy, which issued May 1, 1985. I would appreciate your confirming this and getting back to me so we can coordinate future handling of the defense.

NFU did not respond to Federated’s second letter.
    In October 1994, Federated defended REMC in a trial that resulted in a hung jury. In July 1995, REMC’s general counsel sent NFU a letter, which provided in part:
We are currently involved in stray voltage litigation and the claimant alleges damages from 1980 through 1991. Our records indicate that your company handled insurance coverage for Tipmont REMC for the years 1980 through 1985. Therefore, I would appreciate your extending coverage for this claim and immediately assisting with the defense.

Defense counsel is Pete Obremskey whose offices are in Lebanon, Indiana and his phone is 317-482-0110. The case is scheduled for trial October 24, 1995 and is scheduled for mediation August 18, 1995 in Terre Haute, Indiana.

Please contact Mr. Obremskey immediately to make necessary arrangements to assist in the defense of this claim.

NFU responded to REMC in August 1995 and confirmed coverage dates from December 1975 until May 1985. NFU also stated that it would “be in contact with Mr. Obremskey and Mr. Connor to make arrangements to participate in the defense of this matter.”
REMC’s second trial occurred in December 1995 and, despite NFU’s stated intention to assist, only Federated defended REMC. A jury entered a verdict in favor of the Fischers and awarded them $1,683,800 in compensatory damages. In January 1996, Attorney Obremskey sent NFU a letter, which provided in part:
By now I am sure you have heard from John Connor the bad news concerning the above captioned case. After an eight week trial, the jury found in favor of the Plaintiffs [and] against Tipmont REMC and assessed the Plaintiffs[] damages in the amount of $1,683,800. I am enclosing a copy of the Judgment Entry herein.

We have made the decision to appeal the judgment of the trial court and I am enclosing herein the Praecipe of the Record which starts the appeal process here in Indiana. I will forward to you copies of briefs, etc. as they are filed. I would anticipate that it would take a significant amount of time to transcribe the record as it will consist of approximately 5,000 pages. If it is filed before the end of the year, I will be surprised. Then comes the briefing that will probably take the majority of 1997 so I doubt if we have a decision from the Court of Appeals much before 1998.

If you have any questions, please give me a call.

Federated paid a supersedeas bond, and proceeded with the appeal.
After this court affirmed the trial court’s judgment, see Tipmont, 697 N.E.2d at 94, and while Federated’s petition for transfer was pending, Federated sent NFU a letter in which Federated raised the issue of allocation of the judgment and costs as follows:
The plaintiffs have calculated the value of the judgment plus accrued interest at slightly over $2.1 million. They indicate that post-judgment interest is accruing at slightly over $11,000 per month. They indicate they would take $2 million even if we withdrew our petition for review [with the Indiana Supreme Court].

I do not recall if we ever agreed on an allocation in this case. I have not yet reviewed our file in its entirety. If you have some thoughts or record of this, please give me a call. You may recall that the plaintiff’s economist calculated damages beginning in the early 1980s. The occurrence allegedly took place from 1980, when the plaintiff began operating at this farm, until June, 1991, when an isolation device was installed at the transformer pole.

There is no designated evidence regarding NFU’s response, if any, to that letter.
In September 1999, our supreme court affirmed the trial court’s judgment. See Tipmont, 716 N.E.2d at 358. At the conclusion of the appeals, REMC owed the Fischers, including interest and costs, a total of $2,204,681.85.
On October 26, 1999, REMC executed an Indemnity Agreement, in which it assigned to Federated “all rights, title and interest in any contract of liability insurance applicable to the underlying claim, including, but not limited to Policy Number 12-80342-54-01, issued by [NFU] . . . .” In addition, REMC appointed [Federated] its “attorney-in-fact to receive any such money or proceeds in our name or otherwise, and to make demand and commence legal action . . . as it deems fit, to collect and all such money . . . in the name of [Federated] or [REMC].” On or before October 28, 1999, Federated paid the judgment of $2,204,681.85. Federated also paid all defense costs, which totaled $462,916.29.
Thereafter, in March 2000, Federated filed suit against NFU alleging claims for contribution, indemnity, and subrogation. While Federated’s suit was pending, our supreme court issued its opinion in Allstate Ins. Co. v. Dana Corp., 759 N.E.2d 1049 (Ind. 2001) (“Dana II”), See footnote which involved an excess liability policy that contained an “all sums” provision similar to that contained in NFU’s policies. See Discussion and Decision, infra. In July 2002, following that decision, Federated sent NFU a letter which provided in relevant part:
As you know, pursuant to the Indemnity Agreement [executed by REMC] . . ., [REMC] assigned, transferred, pledged, and conveyed to Federated, all rights, title and interest of [REMC] in the NFU policies. Federated therefore now exercises the right of [REMC] to elect NFU as the insurance carrier that will pay all sums of the liability for defense and indemnity arising out of the Fischer Action, pursuant to the All Sums rule affirmed by the Indiana Supreme Court in [Dana II]. NFU has waived any right, and is estopped, to assert any defenses or objections to its duty to defend and indemnify [REMC] with respect to the Fischer Action. All such sums are due and owing from NFU to Federated as the assignee of [REMC]. Federated therefore demands payment in full of the entire amount paid by Federated on behalf of [REMC] with respect to the Fischer Action, including without limitation the judgment, costs, interest on the judgment, and defense costs, within thirty (30) days from the date of this letter, in a total current amount of $2,667,598.

(Citation omitted, emphasis added). NFU did not comply with Federated’s demand.
Federated then filed an amended complaint that added claims for bad faith, post-litigation bad faith, and asserted that NFU was estopped from relying on the language of its policy with REMC because it had abandoned REMC when it had a duty to defend. In February 2002, Federated moved for summary judgment. Although it did not file a formal cross-motion, NFU responded that it owed Federated nothing and that summary judgment should be entered in its favor. In March 2003, the trial court entered its summary judgment order, which rejected the arguments of both parties and provided in relevant part:
2.    Plaintiff’s Complaint alleges that Plaintiff, [Federated], issued policies of insurance to [REMC] covering liability for stray voltage claims[,] which policies included primary liability and umbrella coverage from May 1, 1985 through June 1, 1991.

3.    Plaintiff’s Complaint further alleges that Defendant, [NFU], issued policies of insurance to [REMC] covering liability for stray voltage claims, which policies included primary liability and umbrella coverage from approximately May 1, 1975 through [May 1, 1985].

4.    The insurance policy issued by [NFU] provides that it will pay all sums which [REMC] becomes legally obligated to pay as damages.

5.    The applicable insurance policy issued by [Federated] also provides that it will pay all sums which [REMC] becomes legally obligated to pay as damages.

6.    The insurance policies issued by both [Federated] and [NFU] each contain “other insurance” clauses.

7.    Such policy provisions are for the purpose of reducing an insurer’s liability when an insured has access to other insurance. Indiana Ins. Co v. American Underwriters, Inc., 261 Ind. 401, 304 N.E.2d 783, 787 (1973).

8.    [Federated] relies upon Allstate Ins. Co. v. Dana Corp., 759 N.E.2d 1049 (Ind. 2001), for the proposition that [NFU] must indemnify for the total amount of damages.

9.    The Indiana Supreme Court in Allstate Ins. Co. v. Dana Corp., supra, discussed “other insurance” clauses in the context of prorating damages among insurers at different times.

10.    The contention in that case was that the policy at issue required indemnity only for damages incurred in a particular policy period.

11.    The parties in the case at bar do not dispute that both policies provide for indemnity during the period of the subject loss, and that they both cover the same risk.

12.    Both [Federated] and [NFU] are liable for a prorated amount of the resultant damages and costs. See Lititz Mut. Ins. Co. v. Lengacher, 248 F.2d 850, 854 (7th Cir. 1957); Emmco Ins. Co. v. Indiana Farmers Mut. Ins. Co., 152 Ind. App. 212, 283 N.E.2d 404, 406 (1972).

13.    By reason of the foregoing, [Federated] is not entitled to summary judgment, as requested.

This appeal ensued.

Id. at 1201 (record citation omitted, emphasis added).     
    In Dana II, 759 N.E.2d at 1057-58, our supreme court granted transfer and affirmed this court’s conclusion on the “all sums” issue as follows:
These policies require Allstate to indemnify Dana for all sums paid as a result of liability arising from any covered accident or event resulting in property damage . . . that occurs during the policy period. Allstate contends it is responsible only for the portion of damages incurred in a particular policy period. It argues for a proportional allocation of damages among each triggered policy period. In the case of evolving damages, an “occurrence” as that term was used in the CGL [Comprehensive General Liability Policy] policies of this era may take place over time. Cf. Eli Lilly & Co. v. Home, 653 F. Supp. 1, 19 (D.C.C. 1984). If so, the “other insurance” clauses typically found in these policies may have the effect of prorating the damages among the insurers on the risk at different times in that period. Cf. [Indiana Ins. Co. v. American Underwriters, Inc., 261 Ind. 401, 407-08, 304 N.E.2d 783, 787 (1973)].

However, there is no language in the coverage grant . . . that limits Allstate’s responsibility to indemnification for liability derived solely for that portion of damages taking place within the policy period. By the policy’s terms, once an accident or event resulting in Dana’s liability -- an occurrence -- takes place within the policy period, Allstate must indemnify Dana for “all sums” Dana must pay as a result of that occurrence, subject to the policy limits. We agree with the Court of Appeals that whether or not the damaging effects of an occurrence continue beyond the end of the policy period, if coverage is triggered by an occurrence, it is triggered for “all sums” related to that occurrence.

Id. (emphasis added).
    Our supreme court also addressed Allstate’s assertion that more than one policy, namely the 1978 and 1979 policies, had been triggered by the contamination at Dana’s Old Forge site. Dana disagreed and alleged that only the 1978 policy had been triggered. See footnote In affirming this court’s determination that the trial court had erroneously entered partial summary judgment in Dana’s favor, our supreme court stated:
For the reasons given in Part III [discussing the “all sums” provision], once a covered occurrence takes place, Allstate is obligated to indemnify Dana for all sums related to that occurrence up to the policy limits. However, as the Court of Appeals correctly noted, “the policies do not preclude continuing exposure to conditions from being an occurrence for the purposes of more than one policy period.” If contamination caused a covered occurrence in the 1978 policy period, and continued causing damage in the 1979 policy period, that contamination would trigger both policies.

Id. at 1060 (citations omitted). After determining that summary judgment was improper on the issue of whether more than one policy period had been triggered, the court also stated, “We agree with Dana, however, that Dana may elect to seek indemnity from any or all of the policies at risk as to any single occurrence.” Id. (Emphasis added).
    We agree with the trial court that Dana I and Dana II are not dispositive. See Footnote 5, supra. In the Dana litigation, Allstate, the successor in interest to Dana’s excess liability insurer, sought to limit its liability to damages that occurred within each policy period and, specifically, wanted each insurer whose policies were triggered during the same policy period to pay a prorated share of damages. Accordingly, Dana I and Dana II did not address the primary dispute here, namely, how to allocate damages between two primary insurers whose policies covered the same risk at different times and during different policy periods.
    In addition, as noted above, this court recognized in Dana I that despite our determination that Allstate was liable for “all sums” up to the policy limits, “the existence of other coverage may affect the amounts payable either under policy terms or equitable principles.” 737 N.E.2d at 1189. Moreover, we advised that in addition to particular policy limits, “the relationship between underlying primary insurance and the excess insurance provided by the policies are applicable.” Id. Therefore, contrary to what both parties have argued in this case, the determination in Dana I, which was affirmed in Dana II, that Allstate was liable for “all sums” up to policy limits under the language of its policies was not a final adjudication of the amount Allstate had to pay Dana. The parties err when they attempt to extract from Dana I and Dana II an “all sums” rule and apply it out of context.
    Further, we reject the parties’ assertion that under Dana II, REMC could elect either NFU or Federated to indemnify it for its loss. Again, both NFU and Federated’s policies contain definitions of “occurrence” similar to the definition of “occurrence” discussed in the Dana litigation. See Facts and Procedural History, supra. Based on that definition, this court determined, and our supreme court agreed, that while “[c]ontinuous or repeated exposure to conditions that results in property damage during a policy period is a single occurrence for the purposes of that policy[,]” as long as those conditions persist, there is nothing in the policy language “to preclude there being an occurrence for the purposes of the subsequent policy.” Dana I, 737 N.E.2d at 1201; see Dana II, 759 N.E.2d at 1060 (“However, as the Court of Appeals correctly noted, ‘the policies do not preclude continuing exposure to conditions from being an occurrence for the purposes of more than one policy period.’”). Therefore, “ongoing exposure to conditions . . . can constitute an occurrence for each consecutive policy . . . .” Dana I, 737 N.E.2d at 1201 (emphasis added).
    Here, as in the Dana litigation, where environmental contamination took place over a period of years, the Fischers’ dairy cows were exposed to stray voltage over an eleven-year period. As we have explained, NFU’s policies provided coverage to REMC from 1980 through May 1, 1985, and Federated’s policies provided coverage from May 1, 1985 through July 1991. And again, as in the Dana litigation, nothing in NFU or Federated’s policies preclude continuing exposure to conditions from being an occurrence for the purposes of more than one policy period. See footnote Thus, based on the definitions of “occurrence” contained in both NFU and Federated’s policies, the cows’ ongoing exposure to stray voltage constitutes an occurrence for each consecutive policy in effect over those eleven years. Significantly, NFU and Federated did not both provide coverage for any occurrence during the same policy period. Therefore, although our supreme court stated that an insured “may elect to seek indemnity from any or all of the policies at risk as to any single occurrence[,]” Dana II, 759 N.E.2d at 1061, REMC had no election to make in this case.
    In sum, we conclude that the parties’ reliance on Dana II is misplaced. That decision did not establish an “all sums” rule to be applied in other contexts. Even though our supreme court agreed with Dana’s interpretation of the “all sums” provision, this court recognized in Dana I that other coverage and equitable principles may affect the ultimate amount payable in that case. Further, the discussion of the “all sums” provision in Dana I and Dana II concerned whether Allstate’s duty to pay damages would be confined to those damages that occurred within a particular policy period, which would allow for Allstate and any other insurers that provided coverage for the same policy period to prorate damages for that period. Here, NFU and Federated did not provide coverage for the same policy period. And even though the policies at issue contain similar “all sums” provisions, we disagree with the parties’ contention that REMC could elect either NFU or Federated to pay “all sums.” Again, because ongoing exposure to the stray voltage can constitute an occurrence for each consecutive policy period, REMC had no election to make. Rather, the stray voltage which continued to cause property damage over eleven years triggered both policies at different times. Therefore, neither Federated nor NFU is entitled to summary judgment under Dana II. See footnote     

    Although it is undisputed that NFU never participated in REMC’s defense, it is also undisputed that NFU has not denied coverage or asserted that it had no duty to defend. Rather, in response to an inquiry from REMC’s general counsel, NFU confirmed coverage dates from December 1975 through May 1, 1985. In other words, NFU concedes that its policies were triggered. See Brief of Appellee at 20 (NFU “promptly agreed to assist in the defense when [REMC] requested its assistance.”). Thus, NFU’s conduct here is distinguishable from that of the insurer in Stroh Brewing, 127 F.3d at 564, for example, which denied that it had a duty to defend and that its policy covered the insured’s loss.
    Similarly, as the Supreme Court of Illinois explained in Ehlco, 708 N.E.2d at 1134-35:
The general rule of estoppel provides that an insurer which takes the position that a complaint potentially alleging coverage is not covered under a policy that includes a duty to defend may not simply refuse to defend the insured. Rather, the insurer has two options: (1) defend the suit under a reservation of rights or (2) seek a declaratory judgment that there is no coverage. If the insurer fails to take either of these steps and is later found to have wrongfully denied coverage, the insurer is estopped from raising policy defenses to coverage.

(Citations omitted). Again, in this case, NFU has not denied coverage.
    Our review of the designated evidence shows that Federated directed the defense of REMC throughout the Fischer litigation. It is not clear why NFU did not become involved with the defense (1) when it received actual notice of the claim against REMC, or (2) when REMC’s general counsel wrote NFU and specifically requested that NFU assist in the defense. In his affidavit, James Sutherland, who was the NFU attorney that handled the Fischer litigation, stated only that REMC “never unconditionally tendered the defense to NFU.” While we in no way endorse NFU’s actions, the bottom line is that NFU has not denied that its policies were triggered or that those policies covered REMC’s loss. See footnote Thus, Federated’s attempt to apply estoppel under these circumstances must fail. We conclude that the trial court did not err when it denied Federated summary judgment on the basis of estoppel.