Wilhelm Construction, Inc. and J.C. Ripberger Construction Corporation v. Secura Insurance, a Mutual Company and Davenport Masonary, Inc. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 17, 2017
• Docket: 49A02-1604-CT-811
• Status: Published

Opinion

MEMORANDUM DECISION ON REHEARING

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 17 2017, 9:13 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE John W. Mervilde SECURA INSURANCE Rick D. Meils Kyle A. Lansberry Neil A. Davis Michael R. Giordano Meils Thompson Dietz & Berish Lewis Wagner, LLP Indianapolis, Indiana Indianapolis, Indiana

ATTORNEY FOR AMICI CURIAE ATTORNEY FOR APPELLEE DAVENPORT MASONRY Bryce H. Bennett, Jr. Elizabeth C. Green Mark D. Gerth Riley Bennett Egloff LLP Nicholas W. Levi Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Wilhelm Construction, Inc. and August 17, 2017 J.C. Ripberger Construction Court of Appeals Case No. Corporation, 49A02-1604-CT-811 Appellants/Defendants/Third-Party Appeal from the Marion Superior Court Plaintiffs, The Honorable David J. Dreyer, Judge v. Trial Court Cause No. 49D10-1212-CT-46372

Court of Appeals of Indiana | Memorandum Decision on Rehearing 49A02-1604-CT-811 | August 17, 2017| Page 1 of 3 Secura Insurance, a Mutual Company and Davenport Masonry, Inc., Appellees/Third-Party Defendants.

Bradford, Judge.

[1] On May 24, 2017, in an unpublished memorandum decision, we affirmed the

trial court’s decision in favor of Appellees/Third Party Defendants Secura

Insurance, a Mutual Company and Davenport Masonry, Inc.

[2] Appellants/Defendants/Third-Party Plaintiffs Wilhelm Construction, Inc. and

J.C. Ripberger Construction Corp. (“Appellants”) now petition for rehearing.

In petitioning for rehearing, Appellants raise the following three claims: (1)

“Did the Court’s conclusion that vicarious liability via a non-delegable duty

constitutes ‘sole negligence’ under the Anti-Indemnity Statute significantly

depart from decades of Indiana precedent,” (2) “Is the Davenport Contract’s

requirement that Davenport provide insurance to Wilhelm and Ripberger

distinct from whether Davenport owed indemnity, such that the Court should

have addressed the agreement to insure even in light of its decision on

indemnity,” and (3) “Is the Court’s characterization of the trial court’s order as

having found that Wilhelm and/or Ripberger breached a duty to underlying

plaintiff Mark Rhone consistent with the trial court’s order[.]” Appellants’ Court of Appeals of Indiana | Memorandum Decision on Rehearing 49A02-1604-CT-811 | August 17, 2017| Page 2 of 3 Petition for Rehearing, p. 4. Because we find that the first and third claims

levied by the Appellants simply reiterate arguments that were disposed of in our

original memorandum decision, we do not deem it necessary to discuss them

further and hereby deny Appellants’ request for rehearing on these issues.

[3] As for the second claim, Appellants argue on rehearing that this court failed to

rule on the question of whether the Appellants qualified as “Additional

Insureds” under the Secura Policy. Because our Memorandum Decision

handed down on May 24, 2017, did not include a conclusion on this issue, we

grant rehearing for the limited purpose of explicitly stating that we affirm the

trial court’s determinations that (1) Wilhelm did not qualify as an additional

insured under the additional insured provision of the Secura Policy and (2)

Secura does not owe a defense and indemnity to Ripberger because Ripberger

failed to satisfy the conditions precedent to coverage as set forth in the Secura

Policy.

Najam, J, and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision on Rehearing 49A02-1604-CT-811 | August 17, 2017| Page 3 of 3