                                                      FILED
                                                    Oct 09 2012, 8:58 am

FOR PUBLICATION                                            CLERK
                                                         of the supreme court,
                                                         court of appeals and
                                                                tax court



ATTORNEYS FOR APPELLANTS:                  ATTORNEYS FOR APPELLEE XL
                                           INSURANCE f/k/a WINTERTHUR
GEORGE M. PLEWS                            INTERNATIONAL AMERICA
KAREN B. SCHEIDLER                         INSURANCE COMPANY:
SEAN M. HIRSCHTEN
Plews Shadley Racher & Braun LLP           STEPHEN J. PETERS
Indianapolis, Indiana                      DAVID I. RUBIN
                                           Harrison & Moberly, LLP
                                           Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

THOMSON, INC. n/k/a TECHNICOLOR            )
USA, INC., TECHNICOLOR INC., and           )
TECHNICOLOR LIMITED,                       )
                                           )
      Appellants/Plaintiffs,               )
                                           )
             vs.                           )     No. 49A02-1202-PL-80
                                           )
CONTINENTAL CASUALTY CO.;                  )
TRAVELERS CASUALTY & SURETY CO. &          )
TRAVELERS PROPERTY CASUALTY                )
CO. OF AM.; ACE AM. INS. CO. &             )
CENTURY INDEMNITY CO., INDEMNITY           )
INS. CO. OF N. AM., INS. CO. OF N. AM.,    )
& CIGNA INS. CO.; XL INS. AM., INC.;       )
and NORTHERN ASSURANCE CO. OF AM.;         )
                                           )
      Appellees/Defendants.                )


                   APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Michael D. Keele, Judge
                          Cause No. 49D07-0807-CT-30746
                                        October 9, 2012

                              OPINION – FOR PUBLICATION

BRADFORD, Judge

                                     CASE SUMMARY[1]

       Appellants/Plaintiffs Thomson Inc. n/k/a Technicolor USA, Inc., Technicolor,

Inc., and Technicolor, Ltd. (collectively, “Thomson”) appeal from the trial court’s

judgment in favor or Appellee/Defendant XL Insurance of America, Inc. As restated,

Thomson contends that (I) full faith and credit does not require that Indiana courts respect

a California trial court’s decision that California law applies to certain insurance policies

XL sold to Thomson (“the California decision”), (II) comity does not favor deference to

the California decision, and (III) Indiana’s choice-of-law rules require the application of

Indiana law to the policies at issue. Concluding that the trial court did not abuse its

discretion in applying the principles of comity, we affirm on that basis, and do not reach

Thomson’s other arguments.

                        FACTS AND PROCEDURAL HISTORY

       XL sold a total of twelve insurance policies (“the Policies”) to Thomson that are of

interest in this case, policies which were in effect from January 1, 2000, to January 1,

2006. On July 11, 2008, Thomson sued several of its past and present insurers in this

action, including XL, for coverage of an environmental cleanup in Taiwan. Eventually,

by amendment of pleadings, additional sites in Fort Wayne, Indiana; Mocksville, North

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         We heard oral argument in this case on September 25, 2012, at the Indiana Court of Appeals
courtroom in Indianapolis. We wish to commend counsel for the high quality of their oral advocacy.


                                                2
Carolina; Circleville, Ohio; and two sites in Marion, Indiana, were added to the action.

In April of 2009, Thomson mailed a request for coverage to certain insurers for

environmental cleanups of sites in Hollywood and North Hollywood, California, and

West Drayton, United Kingdom, (“the Technicolor Sites”) sites that were acquired when

Thomson acquired Technicolor, Inc., and Technicolor, Ltd.

       On May 14, 2009, American Motorists Insurance Company (“AMICO”), one of

the insurers from whom Thomson had requested coverage for the Technicolor Sites, sued

Thomson and twenty “John Doe” insurers in California court, seeking a declaration that

its policies do not cover the Technicolor Sites. On June 12, 2009, AMICO named XL as

one of the John Doe insurers, adding it to the California action. On August 18, 2009,

Thomson added the Technicolor Sites to the Indiana action.

       On May 24, 2010, the California trial court issued a summary judgment

concluding that California law applied to the interpretation of XL’s policies as to the

Technicolor Sites. Thomson appealed the California decision, which was affirmed by the

Court of Appeal of the State of California on August 29, 2011. Thomson’s petition for

review by the California Supreme Court was denied on December 22, 2011. Pursuant to

United States Supreme Court Rule 13, Thomson had until March 21, 2012, or ninety days

following the California Supreme Court’s denial of review, to petition for a writ of

certiorari, but did not do so.

       Meanwhile, on March 30, 2011, Thomson filed for partial summary judgment as

to choice of law in the Indiana action, seeking to have Indiana law applied to the

interpretation of insurance policies sold to it by XL and the other defendants. On October

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6, 2011, the trial court granted Thomson’s motion for partial summary in part but

concluded that full faith and credit and principles of comity required it to refrain from

departing from the May 24, 2010, California ruling regarding XL’s policies and the

Technicolor Sites. On October 31, 2011, Thomson filed a motion to correct error. On

January 13, 2012, the trial court denied Thomson’s motion to correct error in an order

that provided, in part, as follows:

              4.     The California trial court’s May 24, 2010 Judgment in favor
       of XL and against Thomson and the affirmance of that judgment by the
       California Court of Appeals on August 29, 2011, are entitled to res judicata
       effect under the full faith and credit and comity principles.
       ….
              8.     The California appellate process is concluded and the
       judgment in favor of XL and against Thomson affirmed; therefore, the Full
       Faith and Credit principles set forth in the United States Constitution,
       Article IV, § 1 and Ind. Code § 34-1-18-7 apply and must be given
       preclusive effect. Therefore, Thomson’s Motion to Correct Errors is denied
       as to XL.

Appellant’s App. pp. 82, 84.

                             DISCUSSION AND DECISION

        Whether Comity Favors Deference to the California Court’s Decision

       Thomson argues that the trial court abused its discretion in relying upon the

principles of comity to defer to the California decision.

       “Under principles of comity, Indiana courts may respect final decisions of
       sister courts as well as proceedings pending in those courts.” Am. Econ.
       Ins. Co. v. Felts, 759 N.E.2d 649, 660 (Ind. Ct. App. 2001) (citing George
       S. May Int’l Co. v. King, 629 N.E.2d 257, 260 (Ind. Ct. App. 1994), trans.
       denied). Comity is not a constitutional requirement, but a rule of
       convenience and courtesy. Id. (citing County of Ventura v. Neice, 434
       N.E.2d 907, 910 (Ind. Ct. App. 1982)). Moreover, comity has been
       described as representing “‘a willingness to grant a privilege, not as a
       matter of right, but out of deference and good will. Its primary value is to

                                             4
       promote uniformity of decision by discouraging repeated litigation of the
       same question.’” Id. (citations omitted).

In re Arbitration Between Am. Gen. Fin. Services, Inc. & Miller, 820 N.E.2d 722, 725

(Ind. Ct. App. 2005). “It is within the trial court’s discretion to dismiss an action out of

comity.” Brightpoint, Inc. v. Pedersen, 930 N.E.2d 34, 39 (Ind. Ct. App. 2010), trans.

denied. “Again, an abuse of discretion occurs only when the trial court’s judgment is

against the logic and effects of the facts and circumstances before it, and we will not

reweigh the evidence most favorable to that judgment.” Id.

              Courts in other jurisdictions likewise have concluded that where an
       action concerning the same parties and the same subject matter has been
       commenced in another jurisdiction capable of granting prompt and
       complete justice, comity ordinarily should require staying or dismissal of a
       subsequent action filed in a different jurisdiction, in the absence of special
       circumstances. See McWane Cast Iron Pipe Corp. v. McDowell-Wellman
       Eng’g Co., 263 A.2d 281, 283 (Del. 1970); American Home Products Corp.
       v. Adriatic Ins. Co., 286 N.J. Super. 24, 668 A.2d 67, 72 (N.J. Super. Ct.
       App. Div. 1995).
              Factors this court has considered in addressing comity questions
       include whether the first filed suit has been proceeding normally, without
       delay, and whether there is a danger the parties may be subjected to
       multiple or inconsistent judgments. See Hexter v. Hexter, 179 Ind. App.
       638, 640, 386 N.E.2d 1006, 1008 (1979). We also believe it appropriate to
       look for guidance from cases interpreting Indiana Trial Rule 12(B)(8),
       which expressly permits dismissal of a lawsuit where another action already
       is pending in another Indiana state court. Under that rule, a second action
       “should be dismissed where the parties, subject matter, and remedies are
       precisely or even substantially the same in both suits.” Vannatta v.
       Chandler, 810 N.E.2d 1108, 1110-11 (Ind. Ct. App. 2004).

Id. at 39-40 (quoting Jallali v. Nat’l Bd. of Osteopathic Med. Examiners, Inc., 902 N.E.2d

902, 904 (2009), vacated on other grounds on reh’g, 908 N.E.2d 1168 (Ind. Ct. App.

2009), trans. denied).



                                             5
       We conclude that the trial court did not abuse its discretion. First and foremost,

the specific issue here, which state’s law governed XL’s policies with regard to the

Technicolor Sites, was litigated first in California. Although the Indiana suit was filed on

July 11, 2008, the Technicolor Sites were not made a part of it until August 19, 2009.

The California suit, which was concerned solely with the Technicolor Sites, two of the

three of which are located in California, was filed on May 19, 2009, and XL was added

on June 12, 2009. Additionally, Thomson did not file for summary judgment on the

choice-of-law question in the Indiana action until approximately ten months after the

California trial court had already ruled against it on the same question, and there is no

indication that the California suit was not proceeding normally in the California court

system. Although both the California and Indiana suits involve many more parties and

issues, the issue, parties, and remedies in this appeal were precisely the same in both

actions and the only things affected by the trial court’s invocation of comity. We believe

it is also worth noting that the effect of giving deference to the California decision has the

effect of applying California law to those sites contaminated by Technicolor, apparently a

California-based company before Thomson’s acquisition, and applying Indiana law to

those sites contaminated by Thomson, an Indiana-based company, including three sites in

Indiana. In short, there do not seem to be any special circumstances in this case that

would warrant departure from the general rule that comity favors deference to the

California courts. The trial court did not abuse its discretion in deferring to the California

decision.

       The judgment of the trial court is affirmed.

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VAIDIK, J., and CRONE, J., concur.




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