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ATTORNEYS FOR APPELLANTS Caroline B. Briggs John K. Morris Lafayette, Indiana

ATTORNEY FOR APPELLEE The Bar Plan Mutual Ins. Co. Philip E. Kalamaros Hunt Suedhoff Kalamaros LLP St. Joseph, Michigan

ATTORNEYS FOR AMICI CURIAE Defense Trial Counsel of Indiana Donald B. Kite, Sr. Dean-Webster, Wright & Kite LLP Indianapolis, Indiana James D. Johnson Rudolph Fine Porter & Johnson LLP Evansville, Indiana Insurance Institute of Indiana Karl L. Mulvaney Barry C. Cope Bingham McHale, LLP Indianapolis, Indiana

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Indiana Supreme Court
_________________________________ No. 49S04-1011-CV-635 MICHAEL ASHBY AND RANDY O'BRIEN, v.

In the

FILED
Jun 21 2011, 9:43 am
of the supreme court, court of appeals and tax court

CLERK

Appellants (Plaintiffs below),

THE BAR PLAN MUTUAL INSURANCE COMPANY AND C. BRUCE DAVIDSON, JR., Appellees (Defendants below). _________________________________ Appeal from the Marion Superior Court No. 49D05-0504-CT-014786, 49D05-0504-PL-014864, 49D12-0504-CT-014786, 49D12-0504PL-014864, 49D13-0601-CT-003817, 49D14-0504-CT-014786 The Honorable Robyn L. Moberly, Judge ________________________________ On Transfer from the Indiana Court of Appeals, No. 49A04-0910-CV-569 _________________________________ June 21, 2011 Dickson, Justice. This appeal challenges the grant of summary judgment in favor of an insurance company seeking a declaration of no professional liability coverage for claims brought against its insured

attorney who abandoned his law practice, was disbarred, and did not report the claims to the company. We reverse the summary judgment.

Briefly summarized, the pertinent designated materials indicate the following sequence of events. The plaintiffs, Michael Ashby and Randy O'Brien each retained attorney C. Bruce Davidson to represent them in damage actions arising out of alleged attacks upon Ashby (on September 11, 2000) and O'Brien (on January 14, 2001) by fellow inmates during incarceration at Indiana Department of Correction facilities. O'Brien retained Davidson to represent him on August 1, 2001, and on January 7, 2003, Davidson filed a complaint on behalf of O'Brien. It was dismissed, however, on August 5, 2003, due to Davidson's repeated failure to conform to court orders. Davidson began representing Ashby about May 9, 2002, but never filed any action on his behalf before the statute of limitation expired in September 2002. Davidson applied for professional liability insurance coverage from The Bar Plan Mutual Insurance Company ("Bar Plan") on March 18, 2003, but did not disclose any potential claims from Ashby or O'Brien. Davidson's application indicated that he had no "knowledge of any incident, circumstance, act, error or omission which may give rise to a [professional liability] claim." Appellant's App'x at 565. Bar Plan issued its professional liability "claims made" policy designating the policy period as "Effective: 03/20/2003" and "Expiration: 03/20/2004." Id. at 568. By special "Retro-Date Exclusion" endorsements, the policy further declared that the policy "does not apply" to claims "arising out of any act, error or omission" of Davidson "occurring prior to 03/20/2001." Id. at 569

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