FILED Sep 30 2025, 9:26 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
IN THE
Court of Appeals of Indiana Bryan Builders, LLC, and Amazon.com Services, LLC, Appellants-Defendants
v.
The Cincinnati Casualty Company, Fair Family Corporation, Steel Services, Inc., Atlantic Casualty Insurance Co., and Scottsdale Insurance, Appellees-Plaintiffs
September 30, 2025 Court of Appeals Case No. 24A-CT-1068 Appeal from the Hendricks Superior Court The Honorable Mark A. Smith, Judge Trial Court Cause No. 32D04-2210-CT-145
Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 1 of 25 Opinion by Judge Vaidik Judges Bailey and DeBoer concur.
Vaidik, Judge.
Case Summary [1] Parties to construction projects often include agreements to insure or waivers of
subrogation in their contracts in an effort to avoid liability by allocating it to an
insurer. The project owner and contractor here did so by incorporating
American Institute of Architects standard contracts into their master agreement,
which delegated insurance responsibilities to each of the parties and contained a
subrogation waiver. The agreement required the project owner to obtain all-risk
property insurance and provided that the owner and contractor waive all
subrogation rights against each other and any subcontractors or sub-
subcontractors for damages covered by property insurance.
[2] After a fire broke out during construction, the contractor paid to repair the
project site. The property insurer didn’t pay anything because the damage
amounted to less than the deductible on the all-risk policy. Even so, because the
property damage falls within the all-risk policy’s coverage terms, we hold that
the damage was still “covered by property insurance” within the meaning of the
subrogation waiver. Thus, the waiver bars the contractor’s claim for
reimbursement for the repair costs. We therefore affirm the trial court’s grant of
Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 2 of 25 summary judgment to the subcontractor, the sub-subcontractor, and their
insurers.
Facts and Procedural History [3] In 2017, Amazon and Bryan Builders, LLC entered a Master Agreement for
construction projects nationwide. 1 This agreement incorporates standard
American Institute of Architects (AIA) Documents A102 and A201 with
various modifications. See Appellants’ App. Vol. 5 pp. 111, 142, 181, 249. The
Master Agreement creates a comprehensive risk-allocation scheme with two
key components: insurance requirements and a subrogation waiver.
The Master Agreement
[4] Under Section 11.3 of the Master Agreement, Amazon, as Owner, must
maintain property insurance that “include[s] the interests of the Owner,
Contractor, Subcontractors and Sub-subcontractors as loss payees, as their
interests may appear” and provides “‘all-risk’ coverage,” including coverage
“against the perils of fire . . . and physical loss or damage.” Id. at 233. Amazon
obtained this coverage through ACE American Insurance Company (“ACE”),
taking out an all-risk policy (“Amazon’s All-Risk Policy”) with a $35 million
1 The dealings in this case involve several Amazon entities. The “Owner” in the Master Agreement is Amazon Corporate LLC. Appellants’ App. Vol. 5 p. 111. The named insureds on the property-insurance policy obtained under the Master Agreement are “Amazon.com, Inc. and any subsidiary, and Amazon.com, Inc.’s interest in any partnership or joint venture in which Amazon.com, Inc. has management control or ownership . . . .” Appellants’ App. Vol. 8 p. 245. And the “Owner” in the work order for the Plainfield project at issue here is appellant Amazon.com Services, LLC. Appellants’ App. Vol. 6 p. 73. The parties use “Amazon” to refer to these entities interchangeably, so we do the same.
Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 3 of 25 deductible. Amazon’s All-Risk Policy “insures against Direct Physical Loss
and/or Damage to property,” including “Property While in the Course of
Construction,” Appellants’ App. Vol. 9 pp. 6, 9, but it “does not include general
liability, workers compensation, or employers’ liability insurance,” Appellants’
Reply Br. p. 43.
[5] Section 5.3.1 of the Master Agreement provides that if a subcontractor or sub-
subcontractor is hired to perform part of the work, their contracts “shall contain
provisions that . . . require the Subcontractor[ or] Sub-subcontractor . . . to carry
and maintain insurance coverage in amounts which are customary to the
industry and sufficient to protect the Owner.” Appellants’ App. Vol. 5 p. 214.
Although Section 5.3.1 doesn’t specify the type of insurance subcontractors and
sub-subcontractors must carry, Section 11.1 requires Bryan Builders to maintain
liability insurance and states that this same liability-insurance requirement
applies to any subcontractors and sub-subcontractors “[u]nless modified by an
applicable Work Order.” Id. at 233.
[6] Regarding subrogation, the Master Agreement provides that Amazon and
Bryan Builders “waive all rights against . . . each other and any of their
subcontractors, sub-subcontractors, agents and employees, each of the other . . .
for damages caused by fire or other causes of loss occurring prior to Final
Completion to the extent . . . covered by property insurance obtained pursuant
to this Section 11.3 or other property insurance applicable to the Work . . . .” Id.
at 234. Amazon and Bryan Builders must require of any subcontractors or sub-
subcontractors “similar waivers each in favor of [the] other parties” to the
Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 4 of 25 project. Id. The Master Agreement states that a subrogation waiver is “effective
as to a person or entity even though that person or entity would otherwise have
a duty of indemnification, contractual or otherwise . . . .” Id. at 235.
The Project
[7] In January 2022, Amazon and Bryan Builders signed a work order for Bryan
Builders to add a dehumidification unit to a warehouse in Plainfield. See
Appellants’ App. Vol. 6 p. 73. Amazon doesn’t own the warehouse—Ambrose
Plainfield Industrial IV, LLC does—but “Amazon.com, Inc.” is listed as the
“Tenant Guarantor” on the warehouse lease. Id. at 112. Bryan Builders then
entered into a subcontract agreement with Steel Services, Inc. (“the
Subcontract”) for Steel Services to provide certain labor and materials for the
dehumidification project. Steel Services later entered into an agreement with
Fair Family Corporation (“the Sub-subcontract”) to perform welding and other
work on the dehumidification project.
The Subcontract between Bryan Builders and Steel Services
[8] Bryan Builders and Steel Services are the only parties to the Subcontract—
Amazon didn’t sign it. See Appellants’ App. Vol. 3 p. 109. Under Section 3.3.7
of the Subcontract, Steel Services agreed to, “at its own expense, fully protect,
insure, and secure its Work from injury or damage until final acceptance of the
Project and final payment.” Id. at 97. Steel Services must remedy “[a]ny
damage caused to [its] Work” and any “damage to the Work, person or
property of [Amazon], [Bryan Builders,] or others” caused by Steel Services’s
Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 5 of 25 operations. Id. Section 3.3.7 of the Subcontract further provides that Steel
Services “shall have primary responsibility and liability for and defend and
indemnify [Bryan Builders] against any damages or losses which may be
incurred or claimed.” Id.
[9] The Subcontract provides that if its terms conflict with the terms of the Master
Agreement, the Subcontract’s terms control. See id. at 84. The Subcontract
originally contained a flow-down clause stating that Steel Services “agrees to be
bound to and to assume toward [Bryan Builders] all the obligations and
responsibilities” Bryan Builders has toward Amazon under the Master
Agreement. Id. at 85. But an addendum to the Subcontract deletes the flow-
down clause and states that “[a]ny references to [the Master Agreement] shall
be void.” Id. at 110.
[10] In accordance with the Master Agreement’s insurance requirements, the
Subcontract obligates Steel Services to purchase and maintain liability
insurance. Any insurance policy “shall name [Bryan Builders and Amazon] as
Additional Insureds” and “waive all rights of subrogation in favor of [Bryan
Builders and Amazon].” Id. at 107-08. Bryan Builders’s and Amazon’s
additional-insured coverage is to “apply on a primary basis.” Id. at 108.
The Sub-subcontract between Steel Services and Fair Family
[11] Only Steel Services and Fair Family—not Bryan Builders or Amazon—signed
the Sub-subcontract. See id. at 125. The Sub-subcontract provides that Fair
Family must indemnify Amazon and Steel Services against any claims for
Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 6 of 25 damage arising out of Fair Family’s work. See id. at 129. Like the Subcontract,
the Sub-subcontract requires Fair Family to carry liability insurance naming
Bryan Builders and Amazon as additional insureds and to “obtain from each of
its insurers a waiver of subrogation” in favor of Bryan Builders and Amazon.
Id. at 136. Bryan Builders’s and Amazon’s additional-insured coverage is to
“apply as primary insurance.” Id.
Steel Services’s and Fair Family’s Insurance Policies
[12] In satisfaction of their insurance obligations under the Master Agreement and
their respective subcontracts, Steel Services had a liability-insurance policy with
The Cincinnati Casualty Company, and Fair Family had a policy with Atlantic
Casualty Insurance Co. Under both the Cincinnati Casualty and Atlantic
policies, the insurers “will pay those sums that the insured becomes legally
obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to
which this insurance applies.” Appellants’ App. Vol. 2 p. 109; Appellants’ App.
Vol. 4 p. 143. The policies include commercial general liability, umbrella
liability, worker’s compensation, and employer’s liability coverage.
The Fire and Aftermath
[13] In June 2022, while Fair Family was performing welding work on the
warehouse project, a fire broke out, causing significant damage. Based on
several provisions of the Master Agreement making Bryan Builders responsible
for remedying any property damage caused by itself, a subcontractor, or sub-
subcontractor, see Appellants’ App. Vol. 5 pp. 208, 215, 229, Bryan Builders
Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 7 of 25 hired remediation contractors and paid approximately $1 million for emergency
clean up and decontamination. 2 Since the costs fell within the $35 million
deductible of Amazon’s All-Risk Policy with ACE, ACE didn’t make any
payments.
[14] After the cleanup, Bryan Builders sought reimbursement from Steel Services
and Fair Family. When both companies and their insurers denied liability,
litigation ensued. Cincinnati Casualty filed a complaint for declaratory relief
against Bryan Builders, Amazon, and Fair Family seeking an order that
Amazon’s All-Risk Policy provided coverage for the fire damage. Multiple
counterclaims, cross-claims, and third-party complaints followed. Bryan
Builders, Cincinnati Casualty, and Atlantic each filed motions for summary
judgment, and Steel Services and Fair Family joined in Cincinnati Casualty’s
and Atlantic’s motions.
[15] The trial court granted the insurance companies’ summary-judgment motions
and denied Bryan Builders’s motion. The court held that: (1) Amazon’s All-
Risk Policy “provides All Risk Coverage in favor of Bryan Builders, Steel
Services, and Fair Family for all damages due to the fire”; (2) the Master
Agreement’s subrogation waiver barred Bryan Builders’s claims against Steel
Services and Fair Family; and (3) in any event, “[n]either Amazon Services nor
Bryan Builders had standing” because “[n]either Amazon nor Bryan has the
2 Though the Master Agreement called for Bryan Builders to maintain insurance, it is unclear whether it did.
Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 8 of 25 right to recover for property damage to property they do not own.” Appellants’
App. Vol. 2 pp. 37-38.
[16] Amazon and Bryan Builders now appeal. 3
Discussion and Decision [17] Amazon and Bryan Builders contend the trial court erred in denying Bryan
Builders’s summary-judgment motion and in granting Cincinnati Casualty and
Atlantic’s motions, in which Steel Services and Fair Family joined. We review
a motion for summary judgment de novo, applying the same standard as the
trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). That is, “The
judgment sought shall be rendered forthwith if the designated evidentiary
matter shows that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Ind. Trial Rule
3 We must mention the format of Amazon and Bryan Builders’s opening brief. Rather than typing out the text of the relevant contractual provisions, Amazon and Bryan Builders included screenshots of portions of the contracts as images. Their counsel states that the brief contains fewer than 14,000 words (the limit for an appellant’s brief under Indiana Appellate Rule 44) “as counted by the word processing system used to prepare the Brief,” Appellants’ Br. p. 81, as permitted by Appellate Rule 44(F). But given the number of screenshots in the brief (over 50) and the number of words in each screenshot (some containing hundreds of words), the text depicted in these images was not counted toward the word limit. Even without the screenshots, the brief is right around 14,000 words, so counting the text in the screenshots, the brief is thousands of words over the limit. Under Appellate Rule 44(C), the only portions of an appellant’s brief that may be excluded from the word count are the cover information, table of contents, table of authorities, signature block, certificate of service, and word count certificate. And Appellate Rule 44(F)’s statement that a party “may rely on the word count of the word processing system used to prepare the brief” does not mean that a party can omit the words in images of text if the word processing system used doesn’t include those words in its word count. Amazon and Bryan Builders thus should have counted the text in the screenshots toward their word limit and either made omissions to stay within the limit or moved for leave to file an oversized brief under Appellate Rule 44(B) (as they did for their reply brief). But the appellees haven’t moved to strike the brief or asked us to take any other remedial action, so we proceed on the brief as written.
Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 9 of 25 56(C). The interpretation of a contract is a question of law reviewed de novo,
with the goal of determining the parties’ intent when they made the agreement.
Franciscan All. Inc. v. Metzman, 192 N.E.3d 957, 963 (Ind. Ct. App. 2022). In
doing so, we must examine the contract’s plain language, read it in context,
and, whenever possible, construe it to render every word, phrase, and term
meaningful, unambiguous, and harmonious with the whole. Id.
I. Bryan Builders has standing to pursue its claims [18] We begin our analysis with standing. See Solarize Ind., Inc. v. S. Ind. Gas & Elec.
Co., 182 N.E.3d 212, 215 (Ind. 2022) (“Standing is a threshold issue: if it is
lacking, the court cannot consider the merits of the claim.”). Standing is an
issue of law that we review de novo. City of Gary v. Nicholson, 190 N.E.3d 349,
351 (Ind. 2022). Standing requires “a personal stake in the outcome of the
litigation” and “a direct injury as a result of the complained-of conduct.” Bd. of
Comm’rs of Union Cnty. v. McGuinness, 80 N.E.3d 164, 168 (Ind. 2017).
[19] The trial court concluded that “[n]either Amazon Services nor Bryan Builders
had standing” because “[n]either Amazon nor Bryan has the right to recover for
property damage to property they do not own.” But Bryan Builders does have
standing. Its obligations under the Master Agreement and the costs it paid to
remedy the fire damage establish a personal stake in the outcome of the lawsuit
and constitute a direct injury. The Master Agreement makes Bryan Builders
responsible to Amazon for the acts and omissions of any subcontractors or sub-
subcontractors and requires Bryan Builders to repair at its own expense any
Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 10 of 25 damage caused by itself, a subcontractor, or a sub-subcontractor. After the fire,
Bryan Builders paid around $1 million to repair and remediate the damage and
is now seeking reimbursement for that amount. This constitutes a direct injury
and establishes a personal stake in the outcome of the case. The trial court
therefore erred in finding that Bryan Builders lacked standing.4 See Steury v. N.
Ind. Pub. Serv. Co., 510 N.E.2d 213, 215 (Ind. Ct. App. 1987) (“[T]he trial court
erred in determining that Steury lacked standing to bring this cause of action
against NIPSCO as Steury acted under compulsion for the protection of his
obligation under the contract . . . .”), reh’g denied.
II. The Master Agreement places the risk of fire loss on Amazon’s All-Risk Policy [20] To decide this case, we must examine the risk-allocation scheme in the Master
Agreement. “[W]hen a contract contains an agreement to insure or a waiver of
subrogation, the parties demonstrate their intent to avoid liability by allocating
it to an insurer.” U.S. Automatic Sprinkler Corp. v. Erie Ins. Exch., 204 N.E.3d 215,
223 (Ind. 2023). An agreement to insure is meant to provide the parties with the
benefits of insurance regardless of the cause of the loss—otherwise, each would
4 Amazon and Bryan Builders also argue that Amazon has standing and is a real party in interest, but we need not decide this issue as to Amazon. Amazon has not asserted a claim for the fire damage or requested reimbursement for the amount Bryan Builders paid—only Bryan Builders itself did. The only reason Amazon is a party to this litigation is because Cincinnati Casualty named Amazon as a defendant in its complaint for declaratory relief. Amazon never filed a counterclaim, cross-claim, or third-party complaint or moved for summary judgment. Because it has not attempted to invoke the court’s power, the standing and real-party-in- interest requirements do not apply to Amazon. But because Amazon was brought into the case by Cincinnati Casualty and had judgment entered against it by the trial court, it certainly has the right to be part of this appeal.
Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 11 of 25 provide its own insurance protection, and there would be no need for the
contract to place the duty on one of them. Id. at 222. “Like an agreement to
insure, a subrogation waiver signifies the contracting parties’ intent to recover
damages through insurance claims, not lawsuits . . . .” Id. (quotation omitted).
A. The Master Agreement incorporates American Institute of Architects contract language
[21] AIA form contracts are commonly used in the construction industry to outline
the terms for performance of work and the responsibilities of the parties to a
project. Amazon and Bryan Builders incorporated AIA Documents A102 and
A201 into the Master Agreement, particularly those sections setting forth
insurance requirements and waivers of subrogation. We have recognized that
these provisions “reveal[] a studied attempt by the parties to require
construction risks to be covered by insurance and to allocate among the parties
the burden of acquiring such insurance.” S. Tippecanoe Sch. Bldg. Corp. v.
Shambaugh & Son, Inc., 395 N.E.2d 320, 326 (Ind. Ct. App. 1979) (quotation
omitted), reh’g denied.
[22] In South Tippecanoe, we concluded that AIA Document A201’s property-
insurance requirement and subrogation waiver demonstrated an intent that “the
parties were to be limited in recovery for property damage to the proceeds of the
insurance required to be carried under the contract, rather than to the individual
assets of a negligent Defendant.” Id. at 327-28. Similarly, in Performance Services,
Inc. v. Hanover Insurance Co., 85 N.E.3d 655, 664 (Ind. Ct. App. 2017), where we
examined the interplay between an AIA contract and several subcontracts, we
Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 12 of 25 observed, “The language of the contracts evidenced an intent of the parties to
allocate construction risks to their insurers—a business decision as to who
would pay if damage to property occurred during the Project.”
[23] This “scheme of remedying construction losses through insurance claims, not
lawsuits,” Bd. of Comm’rs of Cnty. of Jefferson v. Teton Corp., 30 N.E.3d 711, 715
(Ind. 2015), not only protects those performing work on a project but also
benefits the project owner. If damage occurs during the work, a contractual
allocation of construction risks to property insurance avoids disputes among the
parties as to who must pay for the damage. And waivers of subrogation prevent
litigation among the parties and work stoppages caused thereby. Amazon and
Bryan Builders’s use of this scheme in the Master Agreement ensured that if a
fire or other accident causing damage occurred during construction, the work
would not have to stop while the parties decided who was responsible for the
damage. Instead, Amazon’s property insurance would pay for the damage
(once the deductible is met), and work could resume after cleanup.
B. The Master Agreement requires Amazon to provide all-risk property insurance with coverage “against the perils of fire”
[24] Under Section 11.3 of the Master Agreement, Amazon is responsible for
providing property insurance that “include[s] the interests of the Owner,
Contractor, Subcontractors and Sub-subcontractors as loss payees, as their
interests may appear.” Appellants’ App. Vol. 5 p. 233. This insurance must be
“‘all-risk’ coverage,” including coverage “against the perils of fire . . . and
physical loss or damage.” Id. Amazon’s All-Risk Policy with ACE “insures
Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 13 of 25 against Direct Physical Loss and/or Damage to property,” including “Property
While in the Course of Construction.” Appellants’ App. Vol. 9 pp. 6, 9. This is
the exact type of loss for which Bryan Builders is seeking reimbursement—
direct physical damage to the Plainfield warehouse project.
[25] As noted above, Amazon’s property-insurance requirement under the Master
Agreement establishes that if a fire or other construction accident—like the one
here—occurred during the work, the property insurance would cover the
damage, regardless of what party caused the accident (with payment by the
insurer depending on whether the policy’s deductible is met). In accordance
with this risk-allocation scheme and the policy language, the fire damage here is
covered by Amazon’s All-Risk Policy.
[26] We acknowledge that ACE didn’t pay for the damage here, but that’s not
because the damage isn’t covered by Amazon’s All-Risk Policy. Rather, ACE
didn’t pay because the cleanup and remediation costs totaled around $1 million,
but Amazon’s All-Risk Policy has a $35 million deductible.
C. Amazon and Bryan Builders waived their rights to subrogate against Steel Services and Fair Family for fire damage that is covered by property insurance
[27] Because the property damage here falls within the coverage of Amazon’s All-
Risk Policy, the subrogation waiver in the Master Agreement bars Bryan
Builders’s claims for recovery. The Master Agreement states that Amazon and
Bryan Builders “waive all rights against . . . each other and any of their
subcontractors[ and] sub-subcontractors . . . for damages caused by fire or other
Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 14 of 25 causes . . . to the extent . . . covered by property insurance obtained pursuant to
this Section 11.3.” Appellants’ App. Vol. 5 p. 234. This language is
“unambiguously broad.” U.S. Automatic Sprinkler, 204 N.E.3d at 221. It waives
Amazon’s and Bryan Builders’s rights to recover from each other,
subcontractors, and sub-subcontractors for fire damage “to the extent covered
by property insurance”—meaning Amazon’s All-Risk Policy.
[28] In Teton, our Supreme Court examined the same subrogation waiver in an
earlier version of AIA Document A201. The Court held that the “Owner”
obtaining an “‘all-risk’ property insurance policy . . . triggers paragraph 11.3
coverage, and consequently triggers the subrogation waiver.” Teton, 30 N.E.3d
at 716 (footnote omitted). The Court found the Owner’s subrogation claim was
barred because the subrogation waiver “plainly applies to damages caused by
fire or other perils—without exception or distinction—to the extent covered by
property insurance.” Id. at 717. When Amazon took out its All-Risk Policy with
ACE as required by Section 11.3 of the Master Agreement, it triggered
Amazon’s and Bryan Builders’s waivers of their subrogation rights under the
Master Agreement. This waiver applies without exception to fire damage that is
covered by Amazon’s All-Risk Policy—including the fire damage here. The
subrogation waiver bars Bryan Builders’s claims for reimbursement.
D. Our interpretation of these provisions does not conflict with the rest of the Master Agreement
[29] Amazon and Bryan Builders contend the only interpretation of the Master
Agreement “that harmonizes and gives meaning to all of the terms” is that
Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 15 of 25 “when [Bryan] Builders itself does work on a project, Amazon’s All-Risk policy
will apply,” but “when Bryan Builders subcontracts out work to a third party, . .
. the Subcontractor and Sub-subcontractor must procure insurance which will
apply to that specific project.” Appellants’ Reply Br. p. 27. This interpretation
ignores the provisions requiring Amazon to procure property insurance that
includes the interests of subcontractors and sub-subcontractors and disregards
the subrogation waiver in favor of the subcontractors and sub-subcontractors.
[30] Amazon and Bryan Builders support their interpretation by citing Section 5.3.1
of the Master Agreement, which they claim “sets out different insurance
responsibilities when a Subcontractor or Sub-subcontractor does the work.” Id.
at 15. But Section 5.3.1 simply states that any subcontract or sub-subcontract
shall “require the Subcontractor[ or] Sub-subcontractor . . . to carry and
maintain insurance coverage in amounts which are customary to the industry
and sufficient to protect the Owner.” Appellants’ App. Vol. 5 p. 214. It does not
state what type of insurance coverage the sub- and sub-subcontractors must
carry or that it replaces or overrides Amazon’s property-insurance requirement.
[31] Section 11.1 of the Master Agreement, on the other hand, does specify what
kind of insurance subcontractors and sub-subcontractors must carry. This
section requires the contractor to maintain liability insurance, including
commercial general liability, employer’s liability, and worker’s compensation
coverage, and states that subcontractors and sub-subcontractors must also
comply with these insurance requirements. See id. at 232-33. Amazon and
Bryan Builders acknowledge that Amazon’s All-Risk Policy “does not include
Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 16 of 25 general liability, workers compensation, or employers’ liability insurance.”
Appellants’ Reply Br. p. 43. Because Amazon’s All-Risk Policy does not
provide the same coverage as the insurance required of subcontractors and sub-
subcontractors under the Master Agreement, we reject Amazon and Bryan
Builders’s argument that the All-Risk Policy does not apply when
subcontractors or sub-subcontractors work on the project.
[32] Amazon and Bryan Builders also claim the subrogation waiver doesn’t apply
because “nothing was paid by an insurer,” so “none of the damages have been
‘covered by’ any property insurance” within the meaning of the waiver
provision. Appellants’ Br. p. 58. This conflates coverage with payment. South
Tippecanoe directly refutes this argument. There, we held that the subrogation
waiver (“The Owner and Contractor waive all rights against each other for
damages caused by fire or other perils to the extent covered by insurance
provided under this Paragraph 11.3 . . . .”) applied to both the amounts paid out
under the owner’s property-insurance policy and the $1,000 deductible paid by
the owner. S. Tippecanoe, 395 N.E.2d at 323. We noted that the owner “became
the insurer of the other contracting parties to the extent of the deductible.” Id. at
334. Thus, even though the $1,000 was paid by the owner itself, not its property
insurer, it was still “covered by” the property insurance such that the
subrogation waiver barred recovery for that amount.
[33] Again, the reason ACE didn’t pay for the damages here is that Bryan Builders’s
cleanup costs (around $1 million) were less than the deductible under Amazon’s
All-Risk Policy ($35 million). Like the $1,000 deductible in South Tippecanoe,
Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 17 of 25 even though ACE didn’t pay the $1 million, that amount is still covered by the
All-Risk Policy under the Master Agreement’s subrogation waiver, and thus the
waiver applies.
III. The Subcontract and Sub-subcontract don’t override or replace the Master Agreement [34] In an attempt to avoid the waivers of their subrogation rights and Amazon’s
insurance obligation under the Master Agreement, Amazon and Bryan Builders
point to several provisions in the Subcontract and Sub-subcontract. These
arguments ultimately fail, but we address each in turn.
A. The Subcontract doesn’t alter Amazon’s obligations under the Master Agreement because Amazon wasn’t a party to the Subcontract
[35] Amazon and Bryan Builders cite Section 3.3.7 of the Subcontract, which
provides that Steel Services “shall promptly remedy” “damage caused by [its]
operations.” Appellants’ App. Vol. 3 p. 97. Amazon and Bryan Builders claim
this provision “establishes that . . . Steel Services . . . is responsible for all
damages on the Project caused by itself or its third-party Sub-subcontractors.”
Appellants’ Br. p. 48. But the Subcontract doesn’t eliminate Amazon’s
obligations under the Master Agreement, particularly the obligation that
Amazon’s All-Risk Policy must provide coverage against the perils of fire and
physical loss or damage.
[36] First, Amazon didn’t sign the Subcontract. Bryan Builders cannot unilaterally
alter Amazon’s obligations under the Master Agreement via the Subcontract
Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 18 of 25 because Amazon was not a party to the Subcontract. Additionally, while the
Subcontract originally contained a flow-down clause stating that Steel Services
assumed toward Bryan Builders all the obligations and responsibilities Bryan
Builders had toward Amazon under the Master Agreement, the Subcontract
addendum deleted the flow-down clause. See Appellants’ App. Vol. 3 p. 110.
Notwithstanding Section 3.3.7 of the Subcontract, Amazon’s All-Risk Policy is
still responsible for the fire damage under the Master Agreement (to the extent
the policy’s deductible is met).
B. The Master Agreement’s subrogation waiver applies over Steel Services’s duties of indemnification in the Subcontract
[37] Amazon and Bryan Builders also claim that Steel Services’s indemnification
duties under the Subcontract make Steel Services responsible for the fire
damage. The Subcontract provides that Steel Services “shall have primary
responsibility and liability for and defend and indemnify [Bryan Builders]
against any damages or losses which may be incurred or claimed.” Id. at 97.
Amazon and Bryan Builders contend this duty to indemnify Bryan Builders was
“triggered” because Bryan Builders had a “legal obligation” under the Master
Agreement to pay for the repairs. Appellants’ Br. p. 67.
[38] While the Master Agreement contains provisions making Bryan Builders
responsible for remedying any property damage caused by itself, a
subcontractor, or sub-subcontractor, see Appellants’ App. Vol. 5 pp. 208, 215,
229, it also states, “A waiver of subrogation shall be effective as to a person or
entity even though that person or entity would otherwise have a duty of
Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 19 of 25 indemnification, contractual or otherwise,” id. at 235. Amazon’s and Bryan
Builders’s waivers of their subrogation rights in the Master Agreement apply
regardless of Steel Services’s duties of indemnification under the Subcontract.
C. Steel Services’s unfamiliarity with the Master Agreement’s contents does not render the Master Agreement inapplicable
[39] Amazon and Bryan Builders highlight that Steel Services hadn’t seen the
Master Agreement before signing the Subcontract and that the Subcontract
addendum strikes all references to the Master Agreement. They argue that
because Amazon’s All-Risk Policy is provided for in the Master Agreement,
and Steel Services wasn’t aware of the contents of the Master Agreement, the
All-Risk Policy shouldn’t apply to Steel Services. But whether Steel Services
knew of the All-Risk Policy when it entered into the Subcontract doesn’t change
that Amazon agreed to provide all-risk property insurance including the
interests of any subcontractors or sub-subcontractors, which includes Steel
Services. As the trial court observed, “The Subcontract between Bryan Builders
and Steel Services did not waive any right of Steel Services to the All-Risk
Coverage that Amazon was required to provide in favor of all contractors and
subcontractors, including Steel Services and Fair Family.” Appellants’ App.
Vol. 2 p. 37. Put differently, the Subcontract addendum striking references to
the Master Agreement doesn’t override Amazon’s All-Risk Policy or remove
Steel Services as a beneficiary of that policy.
[40] Using the same reasoning, Amazon and Bryan Builders argue that the Master
Agreement’s subrogation waiver shouldn’t apply in favor of Steel Services
Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 20 of 25 because Steel Services was only aware of the subrogation waiver in the
Subcontract, not the one in the Master Agreement. We rejected a similar
argument in Performance Services. There, Southwest Dubois County School
Corporation hired a construction manager to oversee renovations to one of its
schools. The “Construction Manager Contract” incorporated a version of AIA
Document A201 under which “Southwest and the Construction Manager
agreed to waive all subrogation rights against each other and all contractors for
any damage that might occur during the Project that was covered by property
insurance.” Performance Servs., 85 N.E.3d at 657-58. Southwest later contracted
with Performance Services, Inc. (PSI) to complete part of the construction. That
contract didn’t include a subrogation waiver or incorporate the Construction
Manager Contract by reference, instead including an integration clause.
[41] When Southwest’s property insurer, Hanover, brought a subrogation action for
damage that occurred during construction, PSI and a subcontractor argued that
the action was barred by the subrogation waiver in the Construction Manager
Contract. Hanover countered that because “the PSI Contract was a separate
and distinct contract executed over 15 months after the Construction Manager
Contract, . . . the PSI Contract, along with the Huntingburg Subcontract (which
incorporates the PSI Contract), are the controlling agreements.” Id. at 659
(quotations omitted). We held that “[t]he total effect of all the contracts was to
distribute the risks incidental to the Project to an insurance carrier” and that
“[t]he language of the Construction Manager Contract supports the conclusion
that the intent of the parties was to waive all subrogation claims against
Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 21 of 25 contractors and subcontractors”; “[t]he absence of waiver-of-subrogation
language and the inclusion of an integration clause in the PSI Contract d[id] not
convince us otherwise.” Id. at 664.
[42] Like Hanover in Performance Services, Amazon and Bryan Builders try to evade
the subrogation waiver in the Master Agreement by claiming that the Master
Agreement doesn’t apply because it was excluded from the Subcontract. But
although the Subcontract addendum strikes all references to the Master
Agreement, nothing in the Subcontract alters the Master Agreement or restores
Amazon’s or Bryan Builders’s subrogation rights. Amazon and Bryan Builders
waived all subrogation rights against any subcontractors and sub-subcontractors
in the Master Agreement, and they are bound by that waiver.
D. There is no conflict between the Master Agreement’s subrogation waiver and the subrogation waivers in the Subcontract and Sub- subcontract
[43] Amazon and Bryan Builders also contend “the Waiver of Subrogation
provisions in the 2022 Subcontract and Sub-subcontract govern.” Appellants’
Reply Br. p. 27. They claim the Master Agreement’s subrogation waiver does
not apply because it conflicts with Steel Services’s and Fair Family’s waivers in
favor of Amazon and Bryan Builders in the Subcontract and Sub-subcontract.
But no conflict exists. Under the Master Agreement, Amazon and Bryan
Builders waived their subrogation rights against each other and any
subcontractors or sub-subcontractors. As explained above, this means that
Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 22 of 25 Amazon and Bryan Builders cannot seek reimbursement from each other, Steel
Services, or Fair Family for damages covered by Amazon’s All-Risk Policy.
[44] The Subcontract and Sub-subcontract require Steel Services and Fair Family,
respectively, to waive their subrogation rights in favor of Amazon and Bryan
Builders. These waivers do not conflict with the Master Agreement’s
subrogation waiver; they merely impose the same limitations for recovery on
Steel Services and Fair Family as the Master Agreement does on Amazon and
Bryan Builders. In a situation where Steel Services’s or Fair Family’s insurance
covered a loss, these waivers would prevent them (and their insurers) from
seeking reimbursement from Amazon or Bryan Builders for the loss—just as
Amazon and Bryan Builders can’t seek reimbursement from Steel Services or
Fair Family when the All-Risk Policy applies.
IV. The Cincinnati Casualty and Atlantic insurance policies do not apply [45] Amazon and Bryan Builders spend much of their brief arguing that the
Cincinnati Casualty and Atlantic policies—not Amazon’s All-Risk Policy—
must cover the damage here. Under these policies, Cincinnati Casualty and
Atlantic “will pay those sums that the insured becomes legally obligated to pay
as damages because of ‘bodily injury’ or ‘property damage’ to which this
insurance applies.” Appellants’ App. Vol. 2 p. 109; Appellants’ App. Vol. 4 p.
143. In other words, these policies apply only when there is liability by the
insureds. But there is no liability by Steel Services or Fair Family here. As
Atlantic explains, Steel Services and Fair Family “cannot have liability due to
Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 23 of 25 the parties’ agreement to shift the risk of loss by fire to property insurance, and
the waiver/release of claims against each other.” Atlantic’s Br. pp. 44-45. And
“[w]here liability is impossible, liability coverage is impossible.” Id. at 20.
[46] Yet Amazon and Bryan Builders contend the Cincinnati Casualty and Atlantic
policies apply because the subcontracts and policy documents provide that these
policies are “primary” and “not contributory.” Appellants’ Br. pp. 50, 57. But
the “primary” and “not contributory” language matters only when multiple
policies cover the same loss. As just explained, the Cincinnati Casualty and
Atlantic policies do not apply here because Steel Services and Fair Family are
not liable for the fire damage. Amazon’s All-Risk Policy alone covers the
damage.
[47] For these reasons, the court properly granted Cincinnati Casualty’s and
Atlantic’s motions for summary judgment and denied Bryan Builders’s motion
for summary judgment. 5
[48] Affirmed.
5 In response to Cincinnati Casualty’s supplemental motion for summary judgment, Amazon and Bryan Builders designated, among other evidence, an affidavit from Meredith Philipp, Amazon Services’s Corporate Counsel for Construction. Cincinnati Casualty moved to strike Philipp’s affidavit, which the trial court granted. On appeal, Amazon and Bryan Builders argue the trial court abused its discretion in striking Philipp’s affidavit. But even if the affidavit hadn’t been stricken, we would still affirm the trial court’s grant of summary judgment for Cincinnati Casualty because the substance of the affidavit has no bearing on our conclusions.
Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 24 of 25 Bailey, J., and DeBoer, J., concur.
ATTORNEYS FOR APPELLANTS Terrence L. Brookie Maggie L. Smith Joshua N. Kutch Frost Brown Todd LLP Indianapolis, Indiana
ATTORNEYS FOR APPELLEE THE CINCINNATI CASUALTY COMPANY Jerry E. Huelat David A. Mack Robert J. Penny Huelat & Mack, P.C. LaPorte, Indiana
ATTORNEYS FOR APPELLEE FAIR FAMILY CORPORATION Scott B. Cockrum Candace C. Dickson Lewis Brisbois Bisgaard & Smith LLP Highland, Indiana
ATTORNEYS FOR APPELLEE STEEL SERVICES, INC. Evan M. Norris Daniel M. Drewry Drewry Simmons Vornehm, LLP Carmel, Indiana
ATTORNEYS FOR APPELLEE ATLANTIC CASUALTY INSURANCE CO. David L. Taylor Audrey L. Smith Taylor DeVore P.C. Carmel, Indiana
Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 25 of 25