National Collegiate Athletic Association v. Ace American Insurance

N
                                                                            FILED
                                                                        Jul 15 2020, 8:35 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEES
George M. Plews                                             Stephen J. Peters
Sean M. Hirschten                                           David I. Rubin
Plews Shadley Racher & Braun, LLP                           Kroger Gardis & Regas, LLP
Indianapolis, Indiana                                       Indianapolis, Indiana
                                                            Marianne G. May
                                                            Daren S. McNally
                                                            Florham Park, New Jersey

                                                            Sydney L. Steele
                                                            Kroger Gardis & Regas, LLP
                                                            Indianapolis, Indiana
                                                            David T. Brown
                                                            Chicago, Illinois



                                             IN THE
     COURT OF APPEALS OF INDIANA

National Collegiate Athletic                                July 15, 2020
Association,                                                Court of Appeals Case No.
Appellant-Plaintiff,                                        19A-PL-1313
                                                            Appeal from the Marion Superior
        v.                                                  Court
                                                            The Honorable David J. Dreyer,
Ace American Insurance, et al.,                             Judge
Appellees-Defendants.                                       Trial Court Cause No.
                                                            49D10-1601-PL-1570



Riley, Judge.



Court of Appeals of Indiana | Opinion 19A-PL-1313 | July 15, 2020                               Page 1 of 24
                                 STATEMENT OF THE CASE
[1]   Appellant-Plaintiff, National Collegiate Athletic Association (NCAA), appeals

      the trial court’s summary judgment in favor of Appellees-Defendants, Federal

      Insurance Company (FIC), Illinois National Insurance Company (Illinois

      National), and Westchester Fire Insurance Company (Westchester)

      (collectively, Insurers), concluding that, as a matter of law, Insurers are not

      required to provide coverage for the underlying lawsuit filed against the

      NCAA. 1


[2]   We affirm.


                                                      ISSUE
[3]   The NCAA presents one issue on appeal, which we restate as: Whether no

      genuine issue of material fact exists that the Related Wrongful Acts Exclusion

      in the NCAA insurance policies bars coverage for the NCAA in the Jenkins

      lawsuit.


                       FACTS AND PROCEDURAL HISTORY
[4]   The NCAA is an unincorporated association of American colleges and

      universities, with the basic purpose to “maintain intercollegiate athletics as an

      integral part of the educational program and the athlete as an integral part of




      1
       We conducted a virtual oral argument in this cause on June 9, 2020. We thank counsel for their excellent
      advocacy and presentation.

      Court of Appeals of Indiana | Opinion 19A-PL-1313 | July 15, 2020                              Page 2 of 24
      the student body and by so doing, retain a clear line of demarcation between

      intercollegiate sports and professional sports.” (Appellant’s App. Vol IV, p. 17).

      To achieve this purpose, the NCAA promulgates rules governing the financial

      aid its member universities and colleges may offer student-athletes.


                                           I. The Underlying Actions


[5]   The NCAA’s rules governing what its member institutions may offer student-

      athletes have changed since 2006, when a class action complaint in White v.

      Nat’l Collegiate Athletic Ass’n, Case No. CV06-0999 (C.D. Cal.) was settled in

      California. Prior to White, student-athlete scholarships, or grants-in-aid,

      covered only tuition and fees, room and board, and required books. However,

      this grant-in-aid was less than the actual cost of attendance. The total cost of

      attendance includes all grant-in-aid items, in addition to “supplies,

      transportation, and other expenses related to attendance at the institution.”

      (Appellant’s App. Vol IV, p. 214). Pursuant to NCAA’s rules in 2006, student-

      athletes could receive financial aid that covered the entire cost of attendance,

      but the component of that scholarship that was paid in excess of the grant-in-aid

      could not be based primarily on the student-athlete’s participation in athletics.

      Nevertheless, member institutions could not offer student-athletes health

      insurance or accident insurance and grants-in-aid could only be offered for a

      single year.


[6]   The White complaint, in its second amended version, alleged:




      Court of Appeals of Indiana | Opinion 19A-PL-1313 | July 15, 2020         Page 3 of 24
        While Major College Football and Major College Basketball
        have become a huge commercial enterprise generating billions in
        annual revenues, the NCAA and its member institutions do not
        allow student-athletes the share of the revenues that they would
        obtain in a more competitive market. Through an unlawful
        horizontal agreement, the NCAA and its member institutions
        have agreed to deny a legitimate share of the tremendous benefits
        of their enterprise to the student-athletes that made the big
        business of full-time college sports possible. Under their
        longstanding express agreement, the NCAA and its member
        institutions have short-changed student-athletes by imposing an
        artificial cap on the amount of financial aid any student-athlete
        may receive in the form of an athletic scholarship, or grant-in-aid.
        The artificial cap on financial aid is set below the full amount of
        the full cost of attendance that any student would incur to attend
        the relevant colleges and universities.


(Appellant’s App. Vol. III, pp. 60-61). The White plaintiffs’ antitrust theory

advocated that without the NCAA’s grant-in-aid rules in place at the time,

“[s]chools competing against one another to attract student-athletes in the

relevant markets for Major College Football and Major College Basketball

would increase the amount of financial aid available so that full athletic

scholarships would, in fact, cover the full [cost of attendance].” (Appellant’s

App. Vol. III, p. 61). As relief, the White plaintiffs sought the elimination of the

artificial grant-in-aid cap and damages based on the athletics-based financial aid

payments covering the full cost of attendance. They also requested the White

court for an injunction restraining the NCAA from enforcing its unlawful and

anticompetitive agreements to cap the amount of financial aid available to

student-athletes at an amount that does not cover the full cost of attendance.

While the NCAA was the only defendant in this matter, the plaintiff class was
Court of Appeals of Indiana | Opinion 19A-PL-1313 | July 15, 2020         Page 4 of 24
      limited to male college football and basketball players who received athletic-

      based grants-in-aid at any time between February 17, 2002 and the “date of

      judgment in this matter.” (Appellant’s App. Vol. III, p. 66). White settled in

      2008, with final judgment entered on August 5, 2008.


[7]   In conjunction with and after the White settlement, the NCAA made changes to

      the benefits system that member institutions could offer student-athletes. As a

      result, the cost of attendance gap between the value of a scholarship and the

      actual cost of attending the institution decreased after 2006. Furthermore, the

      NCAA and its member institutions created a $218 million Student-Athlete

      Opportunity Fund accessible to student-athletes with financial need which

      allowed schools to provide varying degrees of benefits to student-athletes tied to

      the student-athlete’s education or to the cost of attending the institution. The

      NCAA also amended various rules to allow schools to offer additional benefits

      such as health and accident insurance and to offer scholarships that are

      guaranteed regardless of whether the student-athlete competes for the entirety of

      the period of the financial aid award.


[8]   On March 17, 2014, another class action complaint, Jenkins et al. v. Nat’l

      Collegiate Athletic Assoc., was filed. The second amended complaint, filed on

      February 13, 2015, in the United States District Court for the Northern District

      of California, alleged


              The Defendants in this action—the [NCAA] and five major
              NCAA conferences that had agreed to apply NCAA restrictions
              []—earn billions of dollars in revenues each year through the

      Court of Appeals of Indiana | Opinion 19A-PL-1313 | July 15, 2020          Page 5 of 24
              hard work, sweat and sometimes broken bodies of top-tier college
              football and men’s basketball athletes who perform services for
              Defendants’ member institutions in the big business of college
              sports. However, instead of allowing their member institutions
              to compete for the services of those players while operating their
              businesses, Defendants have entered into what amounts to cartel
              agreements with the avowed purpose and effect of placing a
              ceiling on the compensation that may be paid to those players for
              their services. Those restrictions are pernicious, a blatant
              violation of the antitrust laws, have no legitimate pro-competitive
              justification, and should now be struck down and enjoined.


      (Appellant’s App. Vol. III, p. 116). Through its lawsuit, the Jenkins plaintiffs

      sought to enjoin the NCAA and the other defendants from imposing any

      restrictions on the amount of money or other benefits that may be offered to

      student-athletes by the schools or anyone else. While White challenged NCAA

      Bylaws 15.02.5, 15.02.2, and 15.1, which capped a grant-in-aid below the cost

      of attendance, Jenkins contested, as illegal under the Sherman Act, all NCAA

      rules that prohibit, cap, or otherwise limit the remuneration that players may

      receive for their athletic services, including but not limited to NCAA Bylaws 12

      (amateurism; prohibiting boosters, etc.), 13 (recruiting), 15, and 16.


[9]   The Jenkins action was filed on behalf of two classes consisting of Division I

      Football Bowl Subdivision football players and men’s Division I basketball

      players who, from the date of the Jenkins complaint through final judgment in

      Jenkins have received or will receive a full grant-in-aid scholarship or a written

      offer for a grant-in-aid scholarship. The Jenkins time period does not overlap

      with the White time period. Unlike White, Jenkins’ declaratory and injunctive


      Court of Appeals of Indiana | Opinion 19A-PL-1313 | July 15, 2020         Page 6 of 24
       relief sought to enjoin the NCAA and the other defendants from imposing any

       restrictions on what money or other benefits could be offered to student-

       athletes.


                                               II. Insurance Coverage


                A. The 2005-2006 Policies – (effective during the White litigation)


[10]   The NCAA purchased a primary insurance policy issued by National Union

       Fire Insurance Company (National Fire) (2005-2006 Primary Policy) and two

       excess policies for the period of September 30, 2005 to September 30, 2006.

       One of the excess policies is a follow form policy, indicating that its coverage

       generally applies according to the same terms and conditions as the 2005-2006

       Primary Policy after the 2005-2006 Primary Policy is exhausted.


[11]   Coverage under the 2005-2006 Primary Policy was limited to Claims “first

       made” and reported during the policy period: “This policy shall pay on behalf

       of the [NCAA] Loss arising from a Claim first made against the [NCAA]

       during the Policy Period . . . reported to the Insurer . . . for any actual or alleged

       Wrongful Act of the [NCAA][.]” (Appellees’ App. Vol. III, p. 25). However,

       Section 7(b) of the Primary Policy states:


               If a written notice of Claim has been given to the Insurer
               pursuant to Clause 7(a) above, then any Claim which is
               subsequently made against the Insureds and reported to the
               Insurer alleging, arising out of, based upon or attributable to the
               facts alleged in the Claim for which such notice has been given,
               or alleging any Wrongful Act which is the same as or related to
               any Wrongful Act alleged in the Claim of which such notice has
       Court of Appeals of Indiana | Opinion 19A-PL-1313 | July 15, 2020             Page 7 of 24
                 been given, shall be considered made at the time such notice was
                 given.


       (Appellees’ App. Vol. III, p. 36).


[12]   ‘Claim’ is defined as “A written demand for monetary relief; or . . . a civil,

       criminal, regulatory or administrative proceeding for monetary or non-

       monetary relief[.]” (Appellees’ App. Vol. III, p. 29). The 2005-2006 Primary

       Policy defines Wrongful Act, in relevant part, as “any breach of duty, neglect,

       error, misstatement, misleading statement, omission or act by or on behalf of

       the [NCAA].” (Appellees’ App. Vol. III, p. 32). The definition also

       “specifically include[s] . . . violation of the Sherman Antitrust Act or similar

       federal, state or local statutes or rules[.]” (Appellees’ App. Vol. III, p. 33). The

       2005-2006 Primary Policy notes that “any Claim which is made subsequent to

       the Policy Year . . . which, pursuant to Clause 7(b) . . . is considered made

       during the Policy Year . . . shall also be subject to the one applicable aggregate

       Limit of Liability[.]” (Appellees App. Vol. III, p. 35).


               B. The 2012-2014 Policies - (effective at the commencement of Jenkins)


[13]   XL Specialty Insurance Company (XL) 2 issued a primary policy to NCAA for

       the period of September 30, 2012 to September 30, 2014 for an amount of $20

       million (2012-2014 Primary Policy). Excess policies, which are follow form




       2
           XL settled with NCAA in 2018.


       Court of Appeals of Indiana | Opinion 19A-PL-1313 | July 15, 2020          Page 8 of 24
       policies to XL’s primary policy, were issued by FIC (for an amount of $10

       million in excess of $20 million), by Illinois National (for an amount of 10

       million in excess of $30 million), and by Westchester (for an amount of $5

       million in excess of $40 million) (collectively, 2012-2014 Excess Policies).


[14]   The “Insuring Agreement” under Coverage C of the 2012-2014 Primary Policy

       notes that


               This policy shall pay on behalf of the [NCAA] Loss arising from
               a Claim first made against the [NCAA] during the Policy Period
               . . . reported to the Insurer . . . for any actual or alleged Wrongful
               Act of the [NCAA]


       (Appellant’s App. Vol. II, p. 192). The 2012-2014 Primary Policy defines

       Wrongful Acts as “any actual or alleged: act, error, omission, misstatement,

       misleading statement, neglect or breach of duty for: . . . (b) violation of the

       Sherman Antitrust Act or similar federal, state or local statutes or rule[.]”

       (Appellant’s App. Vol. II, pp. 195-96).


[15]   Jenkins is a Claim made against the NCAA during the 2012-2014 Primary

       Policy period. The NCAA timely reported Jenkins to the Insurers pursuant to

       the respective policy terms. Nevertheless, the 2012-2014 Primary Policy

       includes a Related Wrongful Acts Exclusion, which provides as follows:


               IV. Exclusions


               The Insurer shall not be liable to make any payment for Loss in
               connection with a Claim made against the Insured:


       Court of Appeals of Indiana | Opinion 19A-PL-1313 | July 15, 2020            Page 9 of 24
        ***


        C. alleging, arising out of, based upon or attributable to the facts
        alleged, or to the same or Related Wrongful Act alleged or
        contained, in any Claim which has been reported, or in any
        circumstance of which notice has been given before the inception
        date of this policy, under any other management liability
        insurance policy, directors and officers liability insurance policy
        or any similar insurance policy of which this policy is a renewal
        or replacement or which it may succeed in time[.]


(Appellant’s App. Vol. II, p. 197). The 2012-2014 Primary Policies define

“Related Wrongful Act” as:


        Wrongful Acts which are the same, related or continuous, or
        Wrongful Acts which arise from a common nucleus of facts.
        Claims can allege Related Wrongful Acts regardless of whether
        such Claims involve the same or different claimants, Insureds or
        legal causes of action.


(Appellant’s App. Vol. II, p. 194). The 2012-2014 Primary Policy also contains

a notice provision which does not exclude coverage but aligns notice as to an

initial and any subsequent “same or . . . related” Wrongful Act:


        VII. Notice/Claim Reporting Provision


        Notice hereunder shall be given in writing to the Insurer . . .


        B. If written notice of a Claim has been given to the Insurer
        pursuant to Clause VII A above, then any Claim which is
        subsequently made against the Insureds and reported to the
        Insurer alleging, arising out of, based upon or attributable to the
        facts alleged in the Claim for which such notice has been given,
Court of Appeals of Indiana | Opinion 19A-PL-1313 | July 15, 2020         Page 10 of 24
               or alleging a Wrongful Act which is the same as or related to any
               Wrongful Act alleged in the Claim of which such notice has been
               given, shall be considered made at the time such notice was
               given.


       (Appellant’s App. Vol. II, p. 200).


[16]   By letter dated April 11, 2014, XL denied coverage for Jenkins under the 2012-

       2014 Primary Policy, finding upon review of NCAA’s claim that the “Jenkins

       [a]ction involves the same Wrongful Acts and/or Related Wrongful Acts as

       those at issue in the White [a]ction.” (Appellant’s App. Vol. II, p. 168). Both

       “suits challenge the limitation on the amount of [grant-in-aid] provided to

       Division I men’s football and/or basketball players which is less than the full

       cost of attendance, and assert that the NCAA unlawfully has agreed with other

       entities to cap the financial aid provided to student-athletes. . . . The [two]

       actions therefore involved the same, related or continuous Wrongful Acts

       and/or Wrongful Acts which arise from a common nucleus of facts.”

       (Appellant’s App. Vol. II, p. 168). Accordingly, as Jenkins was deemed to have

       been first made in February 2006 when White was filed, XL precluded coverage

       under the 2012-2014 Primary Policy. The insurers of the excess policies equally

       relied on XL’s denial of coverage to bar coverage under the 2012-2014 Excess

       Policies.


[17]   On January 14, 2016, NCAA filed its Complaint for declaratory judgment and

       damages against XL and Insurers. On April 31, 2017, NCAA was granted

       leave to amend its Complaint by adding ACE American Insurance Company


       Court of Appeals of Indiana | Opinion 19A-PL-1313 | July 15, 2020         Page 11 of 24
       (ACE), North American Specialty Insurance Company (NAS), Starr Indemnity

       & Liability Company (Starr), and U.S. Specialty Insurance Company (U.S.

       Specialty) (collectively, New Defendants) as additional Defendants. The

       parties subsequently filed and briefed cross-motions for partial summary

       judgment on NCAA’s claim for insurance coverage, together with supporting

       evidentiary designations. Following a settlement with the NCAA, XL was

       dismissed from this action.


[18]   On June 1, 2019, after a hearing, the trial court entered its partial summary

       judgment in favor of Insurers, finding


               The NCAA repeatedly draws overly fine distinctions regarding
               the related actions and deconstructs the language about different
               class action definitions and causes of actions, etc. The [c]ourt
               finds these analyses unavailing. The Related Wrongful Acts and
               prior notice provisions are unambiguous, the underlying claims
               are clearly all against one wrongful act, that is, the enforcement
               of Bylaws 15 and 16, first made in the White action, and
               coverage is barred under the policies.


       (Appellant’s App. Vol. II, p. 61). On July 1, 2019, the trial court amended its

       Order.


[19]   The NCAA appealed. Following the NCAA’s appeal, the New Defendants

       were dismissed from this action. Additional facts will be provided as necessary.


                                DISCUSSION AND DECISION
                                               I. Standard of Review



       Court of Appeals of Indiana | Opinion 19A-PL-1313 | July 15, 2020       Page 12 of 24
[20]   In reviewing a trial court’s ruling on summary judgment, this court stands in the

       shoes of the trial court, applying the same standards in deciding whether to

       affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,

       

891 N.E.2d 604

, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we

       must determine whether there is a genuine issue of material fact and whether

       the trial court has correctly applied the law.

Id. at 607-08.

In doing so, we

       consider all of the designated evidence in the light most favorable to the non-

       moving party.

Id. at 608.

A fact is ‘material’ for summary judgment purposes if

       it helps to prove or disprove an essential element of the plaintiff’s cause of

       action; a factual issue is ‘genuine’ if the trier of fact is required to resolve an

       opposing party’s different version of the underlying facts. Ind. Farmers Mut. Ins.

       Group v. Blaskie, 

727 N.E.2d 13

, 15 (Ind. 2000). The party appealing the grant

       of summary judgment has the burden of persuading this court that the trial

       court’s ruling was improper. First Farmers Bank & Trust 

Co., 891 N.E.2d at 607

.


[21]   We observe that, in the present case, the trial court entered findings of fact and

       conclusions of law thereon in support of its judgment. Generally, special

       findings are not required in summary judgment proceedings and are not binding

       on appeal. AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 

816 N.E.2d 40

, 48

       (Ind. Ct. App. 2004). However, such findings offer a court valuable insight into

       the trial court’s rationale and facilitate appellate review.

Id. II. Analysis



       Court of Appeals of Indiana | Opinion 19A-PL-1313 | July 15, 2020            Page 13 of 24
[22]   Interpretation of an insurance policy presents a question of law that is

       particularly suited for summary judgment. State Auto Mut. Ins. Co. v. Flexdar,

       

964 N.E.2d 845

, 848 (Ind. 2012). “It is well settled that where there is

       ambiguity, insurance policies are to be construed strictly against the insurer and

       the policy language is viewed from the standpoint of the insured.” Allstate Ins.

       Co. v. Dana Corp., 

759 N.E. 1049

, 1056 (Ind. 2001). This is especially true

       where the language in question purports to exclude coverage. USA Life One Ins.

       Co. of Ind. v. Nuckolls, 

682 N.E.2d 534

, 538 (Ind. 1997). Insurers are free to

       limit the coverage of their policies, but such limitations must be clearly

       expressed to be enforceable. W. Bend Mut. v. Keaton, 

755 N.E.2d 652

, 654 (Ind.

       Ct. App. 2001), trans. denied. “Where provisions linking coverage are not

       clearly and plainly expressed, the policy will be construed most favorably to the

       insured, to further the policy’s basic purpose of indemnity.” Meridian Mut. Ins.

       Co v. Auto-Owners Ins. Co., 

698 N.E.2d 770

, 773 (Ind. 1998). Where ambiguity

       exists not because of extrinsic facts but by reason of the language used, the

       ambiguous terms will be construed in favor of the insured for purposes of

       summary judgment. 

Flexdar, 964 N.E.2d at 848

.


[23]   Focusing on the Related Wrongful Acts Exclusion clause in the 2012-2014

       Primary Policy, the NCAA disputes its application because, applied literally,

       the provision’s overbroad nature would negate virtually all coverage. As an

       alternative argument, the NCAA contends that, even if the Exclusion is not

       ambiguous, the alleged Wrongful Act in Jenkins differs from the Wrongful Act




       Court of Appeals of Indiana | Opinion 19A-PL-1313 | July 15, 2020          Page 14 of 24
       in White, is unrelated and unconnected, and therefore coverage falls within the

       terms of the 2012-2014 Primary Policy.


[24]   To support its argument that the Related Wrongful Acts Exclusion is overbroad

       and imprecise, the NCAA likens the clause to Indiana’s precedents on pollution

       exclusion clauses and advocates to apply our jurisprudence in the area of

       environmental pollution to the language of the 2012-2014 Primary Policy.

       American States Insurance Co. v. Kiger, 

662 N.E.2d 945

(Ind. 1996) concerned

       coverage for environmental contamination caused by leakage of gasoline from a

       gas station’s underground storage tanks. Our supreme court held that because

       “the term ‘pollutant’ does not obviously include gasoline and, accordingly, is

       ambiguous, we . . . must construe the language against the insurer who drafted

       it.”

Id. at 949.

The court reached this conclusion notwithstanding the fact that

       “pollutant[]” was defined in the Kiger policy as “any solid, liquid, gaseous or

       thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids,

       alkalis, chemicals and waste.”

Id. at 948.

“Clearly,” the court concluded, “this

       clause cannot be read literally as it would negate virtually all coverage.”

Id. [25] In

Flexdar, our supreme court assessed the language of a pollution exclusion

       clause, similar to the one at issue in Kiger. 

Flexdar, 964 N.E.2d at 848

. In

       evaluating the provision, the supreme court analyzed the approaches used by

       other courts around the country in their interpretation of absolute pollution

       exclusions.

Id. at 848.

The Flexdar court noted a division in jurisprudence

       between courts employing a literal approach versus those applying a situational

       approach in the application of exclusionary pollution clauses.

Id. at 850.

The

       Court of Appeals of Indiana | Opinion 19A-PL-1313 | July 15, 2020        Page 15 of 24
literal approach applies the exclusionary terms broadly, and thus “eliminates

practically all coverage . . .”

Id. at 851.


Alluding to the literal approach as

“yielding [] untenable results,” our supreme court referenced the examples of

the barring of coverage for furs in a shop smelling like curry due to a

neighboring Indian restaurant and the explosion of a truck caused by vapor

from oilfield waste ignited by a running diesel motor. See
 id. at 851. 
In

contrast, the Flexdar court noted that other courts used the situational approach

which would salvage the exclusion from its overbreadth by upholding it “only

in cases of ‘traditional’ environmental contamination.”
 Id. Rejecting this

approach as workable, the court noted:


        The concept of what is a ‘traditional’ environmental contaminant
        may vary over time and has no inherent defining characteristics.
        This leaves courts in the awkward and inefficient position of
        making case-by-case determinations as to the application of the
        pollution exclusion.



Id. Not finding 
either approach favorable, the supreme court resorted to the

application of “basic contract principles” which dictate that an “insurer can

(and should) specify what falls within its . . . exclusion.”
 

Id. at 851.


Reaffirming Indiana’s ‘be specific’ approach, the court stated:


        Where an insurer’s failure to be more specific renders its policy
        ambiguous, we construe the policy in favor of coverage. Our
        cases avoid both the sometimes untenable results produced by the
        literal approach and the constant judicial substance-by-substance
        analysis necessitated by the situational approach. In Indiana
        whether the TEC contamination in this case would “ordinarily be
        characterized as pollution,” is, in our view, beside the point. The

Court of Appeals of Indiana | Opinion 19A-PL-1313 | July 15, 2020          Page 16 of 24
               question is whether the language in State Auto’s policy is
               sufficiently ambiguous to identify TEC as a pollutant. We are
               compelled to conclude that it is not.



       Id. (internal citations 
omitted).


[26]   Turning to the policy before us, the 2012-2014 Primary Policy defines Related

       Wrongful Acts as “Wrongful Acts which are the same, related or continuous, or

       Wrongful Acts which arise from a common nucleus of facts.” (Appellant’s

       App. Vol. II, p. 194). Following Kiger and Flexdar, the NCAA claims that the

       exclusionary language is overbroad, ambiguous, and fails to give policyholders

       objective guidance as to the application of the provision. Defining “related” as

       “associated; connected,” the NCAA maintains that every Wrongful Act insured

       by the policies is “related” to every other Wrongful Act insured. “At a most

       basic level, every act by the NCAA is ‘associated’ or ‘connected’ with every

       other act the NCAA takes, because the NCAA committed them all.”

       (Appellant’s Br. p. 27).


[27]   We find the NCAA’s focus on Kiger and Flexdar to be without merit to the

       situation before us. It is well-established under Indiana law that case law

       interpreting insurance policy language in one policy is inapplicable to different

       language in different policies and, as such, the NCAA’s reliance on Kiger and

       Flexdar is misplaced. See Tate v. Secure Ins., 
587 N.E.2d 665 
(Ind. 1992) (“The

       decision in [Meridian Mut. Ins. Co. v. Richie, 517 N.E.2d 1265(Ind. Ct. App.

       119), vacated 
540 N.E.2d 27 
(Ind. 1989), reinstated on reh’g, 
544 N.E.2d 488 
(Ind.

       1989)] is not applicable to the present facts because the Meridian Mutual policy

       Court of Appeals of Indiana | Opinion 19A-PL-1313 | July 15, 2020       Page 17 of 24
       language is altogether different from that used in the Secura policy[.]”).

       Specifically, in Flexdar, our supreme court repeatedly emphasized that it was

       addressing one specific insurance provision, namely pollution exclusions.

       Subsequently, other courts discussing Flexdar have recognized the limited

       application of its holding. See, e.g., St. Paul Fire & Marine Ins. Co. v. City of

       Kokomo, 
2015 WL 3907455
, at *5 (S.D. Ind. June 25, 2015) (“Indiana utilizes a

       unique approach to determine the applicability of a pollution exclusion in an

       insurance policy dispute.”) Accordingly, our courts’ approach to reading

       pollution exclusions in general liability policies has no bearing on the

       enforcement of the related wrongful acts language in the insurance policy before

       us.


[28]   It should be noted that the Primary Policy is a claims-based policy, which “links

       coverage to the claim and notice rather than the injury.” Paint Shuttle, Inc. v.

       Cont’l Cas. Co., 
733 N.E.2d 513
, 522 (Ind. Ct. App. 2000), trans. denied. “A

       claims-made policy protects the holder only against claims made during the life

       of the policy.”
 Id. Consequently, “[t]he 
notice provision of a claims-made

       policy is not simply the part of the insured’s duty to cooperate, it defines the

       limits of the insurer’s obligation. If the insured does not give notice within the

       contractually required time period, there is simply no coverage under the

       policy.”
 Id. The 2005-2006 
Primary Policy includes language that is designed

       to cap the insurer’s liability for multiple claims based on the same or

       interrelated Wrongful Acts. As such, a finding that the claims brought under

       Jenkins are related to the White claims pursuant to the Related Wrongful Act

       Court of Appeals of Indiana | Opinion 19A-PL-1313 | July 15, 2020             Page 18 of 24
       language of the 2012-2014 Primary Policy will result in coverage for the Jenkins

       claim to be limited to the 2005-2006 Primary Policy’s aggregate liability limit in

       effect during White and will not result in a situation where there would be no

       insurance coverage; rather, it merely places coverage under the original policy

       period in which the claim was first made.


[29]   It bears emphasizing again that the Related Wrongful Act of the 2012-2014

       Primary Policy is defined as:


               Wrongful Acts which are the same, related or continuous, or
               Wrongful Acts which arise from a common nucleus of facts.
               Claims can allege Related Wrongful Acts regardless of whether
               such Claims involve the same or different claimants, Insureds or
               legal causes of action.


       (Appellant’s App. Vol. II, p. 194). Closely related to this definition is the notice

       provision of the 2012-2014 Primary Policy which does not exclude coverage but

       aligns notice as to an initial and any subsequent “same or . . . related”

       Wrongful Act.


[30]   In Gregory v. Home Ins. Co., 
876 F.2d 602
, 603 (7th Cir. 1989), relied upon by the

       Insurers, an attorney wrote a letter concluding that a company’s offering of

       video tapes for sale was (1) tax-advantaged, and (2) did not implicate federal

       securities law. Both conclusions turned out to be wrong.
 Id. Various parties

       brought suit against the lawyer’s law firm, some regarding only the tax

       advantage conclusions, others based on both conclusions.
 Id. The issue 
before

       the court focused on whether these claims were related for the limits of liability


       Court of Appeals of Indiana | Opinion 19A-PL-1313 | July 15, 2020           Page 19 of 24
under the policy.
 Id. The Limits 
of Liability section of the policy provided, in

pertinent part:


        Two or more claims arising out of a single act, error, omission or
        personal injury or a series of related acts, errors, omissions or
        personal injuries shall be treated as a single claim.



Id. at 603-04. 
To determine whether the various claims were “related” under

the terms of the policy, the Seventh Circuit applied Indiana law and recognized

that “a policy is not made ambiguous simply because the parties disagree on

how it applies to a given situation.”
 Id. at 605. 
In its analysis the court found

that the term “relate” was unambiguous, explaining that


        The common understanding of the word ‘related’ covers a very
        broad range of connections, both causal and logical. However,
        we don’t think the rule requiring insurance policies to be
        construed against the party who chose the language requires such
        a drastic restriction of the natural scope of the definition of the
        word ‘related.’ Parties are generally free to include language of
        their choice in contracts, and courts should refrain from rewriting
        them.




Id. at 606

. 
The court relied on Black’s Law Dictionary to note that ‘related’ is

defined as “having a relationship, connected by reason of an established or

discoverable relation.”
 Id. at 606 
n.5. The Seventh Circuit ultimately

concluded that the claims should be treated as a single claim, subject to the per

claim limit of liability.
 

Id. at 606

.



Court of Appeals of Indiana | Opinion 19A-PL-1313 | July 15, 2020        Page 20 of 24
[31]   In Am. Home Assurance Co. v. Allen, 
814 N.E.2d 662
, 667 (Ind. Ct. App. 2004),

       trans. dismissed. this court analyzed the terms ‘interrelated wrongful acts.’ In its

       analysis, the court distinguished the Gregory case as it involved “the term

       ‘related’ as opposed to ‘interrelated.’”
 Id. at 668. 
In Gregory, “related” was

       defined as a commonly understood term in everyday language and was

       therefore not considered ambiguous.
 

Id. at 669.


This court then continued:


               Here, we observe that the Policy contained the term
               ‘interrelated,’ not ‘related.’ . . . . [W]e find the term ‘interrelated’
               in this insurance policy to be ambiguous. We do so for a number
               of reasons. First, unlike the term ‘related,’ ‘interrelated’ has no
               common understanding as to its meaning. Second, the Policy
               does not define the term. Third, the definition of ‘interrelated’
               can be read restrictively or more expansively. The restrictive
               definition [] requires mutuality between the wrongful acts while
               the broader definition requires only parallelism between the
               wrongful acts. Because of the expansiveness of the definition, we
               agree [] that the term ‘interrelated’ can be interpreted as elastic
               and without practical boundary. Given this ambiguity, we must
               strictly construe the term ‘interrelated’ against the insurer. In so
               doing, we adopt the restrictive meaning [], which requires a
               mutual relationship or connection. We find that there is no
               mutuality between the alleged wrongful acts of Guffey. While
               the acts all flow from Guffey, the acts do not share any mutuality
               or interdependence among themselves. In other words, each
               alleged wrongful act does not impact another act that in turn
               impacts it.



       

Id. at 669.



[32]   Finding Gregory persuasive, we determine that the Related Wrongful Act

       provision is not ambiguous or overbroad and conclude that the White action

       Court of Appeals of Indiana | Opinion 19A-PL-1313 | July 15, 2020             Page 21 of 24
and the Jenkins action presented related claims, as perceived under the Primary

Policies. Both the White and Jenkins action alleged a violation under Section 1

of the Sherman Act, 15 U.S.C. §1, as well as NCAA Bylaw 15, which intends

to cap student-athlete remuneration in violation of the Sherman Act. The White

action contended that, through the NCAA Constitution and the NCAA’s

Bylaws, including Bylaw 15, the NCAA and its members created a horizontal

agreement to artificially cap remuneration to student-athletes to the value of

grant-in-aid. The Jenkins plaintiffs continued to assail the scheme first attacked

by White and claimed that “[t]he short-term settlement in White, which has

since expired, with its class members no longer attending NCAA schools, did

not end the NCAA’s anticompetitive behavior restricting player-

compensation.” (Appellant’s App. Vol. III, p. 138). Jenkins then challenged the

very same framework as White, with specific reference to Bylaw 15:


        NCAA Bylaw 15 sets forth “Financial Aid” rules, many of which
        impose restrictions on the amount and nature of, and method by
        which, remuneration may be provided to athletes . . .


        Standing alone, these rules demonstrate a horizontal agreement
        among competitors to cap the amount of remuneration schools
        may provide athletes for their services, despite how much money
        these athletes may generate for their institutions and [the
        NCAA].


(Appellant’s App. Vol. III, p. 124). The Jenkins class explicitly alleged these

same Bylaws support the unlawful horizontal agreement alleged in the White

action. While we agree with NCAA’s allegation that White centered on the


Court of Appeals of Indiana | Opinion 19A-PL-1313 | July 15, 2020        Page 22 of 24
       cost-of-attendance gap, whereas Jenkins attacks both rules restricting what

       schools can offer student-athletes in the form of scholarships as well as rules

       restricting what others can offer students in the form of endorsements and direct

       payments, it is clear that both lawsuits essentially focus on the scheme instituted

       by Bylaw 15. To this end, the Jenkins action also attacks Bylaws 12 and 13 as

       these effectuate NCAA rules restricting remuneration and limiting financial aid

       to the grant-in-aid cap in Bylaw 15. Specifically with reference to Bylaw 12, the

       Jenkins action alleges that “[t]he NCAA falsely claims that the above-mentioned

       grants-in-aid [i.e., Bylaw 15], which are awarded specifically in the basis of

       athletic ability, are not to be considered payments[,]” and this is necessary

       because Bylaws 12 and 13 prohibit payments to athletes and recruits, such that

       Bylaw 15 and grant-in-aid cannot be considered a payment. (Appellant’s App.

       Vol. III, pp. 125-26).


[33]   Accordingly, the remuneration caps imposed by the NCAA upon student-

       athletes under its Bylaws and characterized as a violation of the Sherman

       Antitrust Act are the same, related or continuous Wrongful Acts at issue in both

       White and Jenkins such as to constitute “Related Wrongful Acts” which

       implicate both the Prior Notice Exclusion and the Notice/Claim Reporting

       provision. The Wrongful Acts in White and Jenkins are connected through

       Bylaw 15 and stem from a common nucleus of facts—the scholarship scheme

       imposed on student-athletes. See 
Gregory, 876 F.2d at 606
. Both actions sought

       injunctive relief and, although the definition of Related Wrongful Acts




       Court of Appeals of Indiana | Opinion 19A-PL-1313 | July 15, 2020        Page 23 of 24
       explicitly allowed for different claimants, the actions were pursued by the same

       type of plaintiff—college football and men’s basketball players. 3


[34]   Therefore, we conclude that the Jenkins action is a Claim that is considered

       made under the 2005-2006 Primary Policy under the Notice/Claim Reporting

       provision and alleges Related Wrongful Acts that are excluded under the 2012-

       2014 Policies pursuant to those policies’ Prior Notice Exclusion. We affirm the

       trial court’s partial summary judgment in favor of the Insurers.


                                                CONCLUSION
[35]   Based on the foregoing, we hold that no genuine issue of material fact exists

       that the Related Wrongful Acts Exclusion in the NCAA insurance policies bars

       coverage for the NCAA in the Jenkins lawsuit.


[36]   Affirmed.


       Baker, J. and Brown, J. concur




       3
         In a related argument, the NCAA contends that because it gave notice of White under the 2005-2006
       Primary Policy, which was settled by the time the Jenkins class action suit was initiated, the Insurers could
       have included specific language in later policies barring coverage for suits challenging compensation
       restrictions. However, we adhere to the principle that an insurance company is “free to determine by its
       contract what risks it is undertaking to insure, provided policy provisions do not violate statutory mandates
       or are against public policy.” Cincinnati Ins. Co. v. Mallon, 
409 N.E.2d 1100
, 1103 (Ind. Ct. App. 1980).

       Court of Appeals of Indiana | Opinion 19A-PL-1313 | July 15, 2020                                Page 24 of 24

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