Walsh Construction Company v. Zurich American Insurance Company , 2017 Ind. App. LEXIS 137 ( 2017 )

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael L. Schultz ZURICH AMERICAN INSURANCE
Parr Richey Obremskey Frandsen & COMPANY
Patterson LLP Kyle A. Lansberry FILED
Indianapolis, Indiana Lewis S. Wooton Mar 28 2017, 9:22 am
Michael R. Giordano CLERK
Lewis Wagner, LLP Indiana Supreme Court
Court of Appeals
Indianapolis, Indiana and Tax Court
ATTORNEYS FOR APPELLEE
ROADSAFE HOLDINGS, INC.
T. Allon Renfro
Swanson, Martin & Bell, LLP
Chicago, Illinois
Robert P. Conlon
Joyce F. Noyes
Walker Wilcox Matousek LLP
Chicago, Illinois
IN THE
COURT OF APPEALS OF INDIANA
Walsh Construction Company, March 28, 2017
Appellant-Plaintiff, Court of Appeals Case No.
45A04-1606-PL-1284
v. Appeal from the Lake Superior
Court
Zurich American Insurance The Honorable William E. Davis,
Company, Judge
Appellee-Defendant, Trial Court Cause No.
45D05-1506-PL-43
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and
Roadsafe Holdings, Inc. d/b/a
Roadsafe Traffic Systems, Inc.,
Appellee-Intervener.
Najam, Judge.
Statement of the Case
[1] Walsh Construction Company (“Walsh”) appeals the trial court’s entry of
summary judgment in favor of Zurich American Insurance Company
(“Zurich”) on Walsh’s complaint for declaratory judgment. Walsh raises three
issues for our review, which we consolidate and restate as whether the trial
court erred when it entered summary judgment for Zurich. As a matter of first
impression, we hold that a self insured retention endorsement to a commercial
general liability insurance policy requires the named insured to satisfy the
amount of the endorsement, whether on its own behalf or on behalf of an
additional insured, before the additional insured may seek to enforce the policy
against the insurer. As that has not occurred here, we affirm the trial court’s
entry of summary judgment for Zurich.
Facts and Procedural History
[2] In January of 2009, Walsh, a general contractor, hired Roadsafe Holdings, Inc.
d/b/a Roadsafe Traffic Systems, Inc. (“Roadsafe”) to be Walsh’s subcontractor
in the construction of a traffic exchange involving Interstates 65 and 80 in Lake
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County. Roadsafe’s work obligations included providing a safe traffic pattern
through the work zone. Walsh’s contract with Roadsafe required Roadsafe to
indemnify Walsh for any liability resulting from Roadsafe’s failure or
negligence in its work. Accordingly, Walsh’s contract required Roadsafe to
procure a commercial general liability insurance policy (“CGL policy”) that
named Walsh as an additional insured on a primary and noncontributory basis.
[3] Roadsafe obtained its CGL policy from Zurich. The CGL policy defined
Roadsafe as the “Named Insured” and stated that, “[t]hroughout this policy[,]
the words ‘you’ and ‘your’ refer to the Named Insured . . . . The word ‘insured’
means any person or organization qualifying as such under Section II—Who Is
An Insured.” Appellant’s App. Vol. 3 at 72. An endorsement attached to the
CGL policy named as additional insureds any “person and organization where
required by written contract,” such as Roadsafe’s contract with Walsh, “but
only with respect to liability for ‘bodily injury’ . . . by your [Roadsafe’s] acts or
omissions . . . .” Id. at 99. The CGL policy then provided as follows: “We
[Zurich] will pay those sums that the insured becomes legally obligated to pay
as damages because of ‘bodily injury’ . . . to which this insurance applies. We
will have the right and duty to defend the insured against any ‘suit’ seeking
those damages.” Id. at 72.
[4] However, Roadsafe also obtained a $500,000-per-occurrence self insured
retention endorsement (“the SIR endorsement”) to the CGL policy. The SIR
endorsement amended the CGL policy as follows:
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The insurance provided by this policy is subject to the following
additional provisions, which in the event of conflict with any other
provisions elsewhere in the policy, shall control the application of the
insurance to which this endorsement applies:
1. Self Insured Retention and Defense Costs—Your Obligations
A. The “self insured retention” amounts stated . . . apply
as follows:
1. If a Per Occurrence Self Insured Retention Amount is
shown in this endorsement, you shall be responsible for
payment of all damages and “pro rata defense costs” for each
“occurrence”[] until you have paid damages equal to the Per
Occurrence amount . . . .
***
B. Defense Costs
Except for any “defense costs” that we may elect to
pay, you shall pay “pro rata defense costs” as they are
incurred . . . .
C. Settlement of Claim
1. Within Self Insured Retention
If any final judgment or settlement is less than the “self
insurance retention” indicated . . . above, you shall
have the right and obligation to settle all such claims or
suits . . . .
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2. Excess of Self Insured Retention
You may not settle any claim or suit which exceeds any
“self insured retention” amount indicated . . . without
our written permission to do so. . . .
***
H. Compliance
Compliance with the requirements set forth in this
endorsement is a condition precedent to coverage. . . .
II. Our Rights and Obligations Excess of the Self Insured
Retention
***
B. Damages Excess of Self Insured Retention—Per
Occurrence or Per Claim
We shall be liable only for the amounts of our share of
“pro rata defense costs” and damages in excess of the
“self insured retention” amounts . . . above . . . .
***
D. Settlement of Claims
1. Within Self Insured Retention
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We shall have, at our option, the right but not the
obligation or duty[] to negotiate the settlement of any
claim within the applicable “self insured retention”
amount, which in our opinion is deemed expedient.
But we shall obtain your consent prior to entering into
any settlement of any claim which is equal to or less
than the “self insured retention” amount. . . .
2. Excess of Self Insured Retention
With respect to any claim under this insurance which
has been tendered to us and which may exceed the “self
insured retention” amount shown . . . we have the right
and duty to negotiate the settlement of such claim and
may pay any or all damages and “defense costs” on
your behalf, both within and excess of the applicable
“self insured retention” amount. Any such payments
made by us for damages or “defense costs” within the
“self insured retention” amount shall be reimbursed
promptly by you.
Definitions—
A. “Self insured retention” means:
the amount or amounts which you or any insured must
pay for all compensatory damages and “pro rata
defense costs” which you or any insured shall become
legally obligated to pay because of damages arising from any
coverage included in the policy.
***
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D. “Occurrence[,]” for purposes of this endorsement only,
means an “occurrence[,]” offense, accident, act, error or
omission[,] or any other such similar event, as defined or
used in our policy, that must occur in order to initiate
payment of covered losses under the policy terms and
conditions.
Id. at 68-71 (emphases added).
[5] On June 15, 2009, Boguslaw Maczuga was injured while operating his motor
vehicle through the work zone’s traffic pattern. On June 27, 2011, Maczuga
served Walsh with a Second Amended Complaint in which Maczuga alleged
that Walsh had negligently created an unsafe traffic pattern.1 As a result of
Maczuga’s complaint, on January 18, 2012, Walsh filed a third-party complaint
against Roadsafe. In its complaint, Walsh alleged, in relevant part, that
Roadsafe had failed to indemnify Walsh and that Roadsafe had breached its
contract with Walsh. Specifically, Walsh’s third-party complaint stated that
“[t]he Maczuga lawsuit seeks recovery from Walsh for its alleged negligence in
connection with work that was to be performed by Road[s]afe” and that,
“[f]ollowing service of process of the Maczuga lawsuit, Walsh tendered its
defense and indemnity to Road[s]afe” but Roadsafe had “failed to either agree
to indemnify or undertake Walsh’s defense.” Appellant’s App. Vol. 2 at 54-55.
1
Maczuga’s complaint did not state a sum certain that he sought in relief.
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[6] Thereafter, Walsh notified Zurich, pursuant to the terms of the CGL policy, of
Maczuga’s lawsuit and requested that Zurich defend Walsh in that suit. Zurich
denied Walsh’s request, and Walsh filed a complaint for declaratory judgment
against Zurich in which Walsh alleged that Zurich had a duty to defend and
indemnify Walsh. Id. at 61-62. Roadsafe intervened in the declaratory
judgment action, and the parties moved for summary judgment. After a
hearing, the trial court entered summary judgment for Zurich, stating:
Zurich has no contractual obligation to cover Walsh as an
additional insured at this time. First of all, the policy is a liability
policy between Zurich and Roadsafe and no person or entity has
sued or even made a claim against Roadsafe for any type of
negligence. Also there is a [SIR endorsement] that requires the
insured to pay the first $500,000.00 of costs and damages of any
claim before Zurich becomes obligated to pay out on the policy.
Since there has been no claim for negligence against Roadsafe,
Roadsafe has paid nothing and has made no claim under the
policy.
Id. at 7. This appeal ensued.
Discussion and Decision
[7] Walsh appeals the trial court’s entry of summary judgment for Zurich. Our
standard of review is clear:
We review summary judgment de novo, applying the same
standard as the trial court: “Drawing all reasonable inferences in
favor of . . . the non-moving parties, summary judgment is
appropriate ‘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 judgment as a matter of law.’” Williams v.
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Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
fact is ‘material’ if its resolution would affect the outcome of the
case, and an issue is ‘genuine’ if a trier of fact is required to
resolve the parties’ differing accounts of the truth, or if the
undisputed material facts support conflicting reasonable
inferences.” Id. (internal citations omitted).
The initial burden is on the summary-judgment movant to
“demonstrate [ ] the absence of any genuine issue of fact as to a
determinative issue,” at which point the burden shifts to the non-
movant to “come forward with contrary evidence” showing an
issue for the trier of fact. Id. at 761-62 (internal quotation marks
and substitution omitted). And “[a]lthough the non-moving
party has the burden on appeal of persuading us that the grant of
summary judgment was erroneous, we carefully assess the trial
court’s decision to ensure that he was not improperly denied his
day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
omitted).
Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to
Hughley).
[8] Moreover, this appeal requires the interpretation of a contract. Interpretation
and construction of contract provisions are questions of law. John M. Abbott,
LLC v. Lake City Bank, 14 N.E.3d 53, 56 (Ind. Ct. App. 2014). As such, cases
involving contract interpretation are particularly appropriate for summary
judgment. Id. And because the interpretation of a contract presents a question
of law, it is reviewed de novo by this court. Jenkins v. S. Bend Cmty. Sch. Corp.,
982 N.E.2d 343, 347 (Ind. Ct. App. 2013), trans. denied. We review the contract
as a whole, attempting to ascertain the parties’ intent and making every attempt
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to construe the contract’s language “so as not to render any words, phrases, or
terms ineffective or meaningless.”2 Four Seasons Mfg., Inc. v. 1001 Coliseum, LLC,
870 N.E.2d 494, 501 (Ind. Ct. App. 2007). “And, in reading the terms of a
contract together, we keep in mind that the more specific terms control over any
inconsistent general statements.” DLZ Ind., LLC v. Greene Cty., 902 N.E.2d 323,
328 (Ind. Ct. App. 2009).
[9] The question presented in this appeal is whether the SIR endorsement amended
Zurich’s obligation under the CGL policy to defend Walsh.3 Again, under the
CGL policy Zurich agreed to “pay those sums that the insured becomes legally
obligated to pay as damages because of ‘bodily injury’ . . . to which this
insurance applies,” which imposed upon Zurich “the right and duty to defend
the insured against any ‘suit’ seeking those damages.” Appellant’s App. Vol. 3
at 72 (emphasis added). On appeal, Walsh and Roadsafe both argue that the
SIR endorsement amends only Zurich’s relationship to Roadsafe and that it
2
We reject Walsh’s characterization of the SIR endorsement as “exclusionary.” Appellant’s Br. at 15-16. In
any event, as explained below we conclude that the SIR endorsement is unambiguous.
3
The trial court concluded that “no person or entity has sued or . . . made a claim against Roadsafe for any
type of negligence,” and Roadsafe argues on appeal that we should affirm the trial court’s entry of summary
judgment on that basis. Appellant’s App. Vol. 2 at 7. We cannot agree. Walsh’s third-party complaint
against Roadsafe alleged that the underlying and allegedly negligent acts were Roadsafe’s and, as such, that
Roadsafe had a duty to indemnify Walsh. In other words, Walsh’s third-party complaint seeks to transfer
any liability under Maczuga’s original claim of negligence from Walsh to Roadsafe and expressly does so on
the basis that the underlying and allegedly negligent acts were Roadsafe’s. Accordingly, we reject Roadsafe’s
argument on appeal that we should affirm the trial court’s entry of summary judgment on that basis.
Similarly, we also reject Roadsafe’s argument that Walsh has not sufficiently alleged negligence on the part
of Roadsafe for Walsh to have standing under the CGL policy as an additional insured. With respect to both
of those arguments, Walsh’s third-party complaint against Roadsafe is sufficient for Walsh to invoke the
CGL policy and its endorsements.
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does not amend Zurich’s obligations under the CGL policy with respect to
Walsh. Zurich, on the other hand, contends that the SIR amount must be
satisfied before Zurich can have any obligations under the CGL policy. We
conclude that Zurich’s reading of the SIR endorsement properly harmonizes the
totality of that document’s language and applies the SIR endorsement as it was
intended to be applied.
[10] We have discussed SIR endorsements before, noting in particular the following:
There are key differences between . . . deductible[s], which
generally exist in primary policies, and retained amounts, which
generally are found in umbrella policies or policies designed to be
excess of a self-insured amount. One difference is that while a
deductible is subtracted from a policy’s limits, thereby reducing
an insurer’s total obligation to the insured, the full limits of a
policy including a retained amount are available to the insured
once that amount has been satisfied. See Douglas R. Richmond,
Issues and Problems in “Other Insurance,” Multiple Insurance and Self-
Insurance, 22 Pepp. L. Rev. 1373, 1449 (1995). Another key
difference is that in a policy with a deductible, the insurer retains
complete control of claims handling; in a policy with a retained
amount, the insurer has no claims handling responsibility,
particularly with respect to claims not exceeding the retained
amount. See id.
Monroe Guar. Ins. Co. v. Langreck, 816 N.E.2d 485, 495 (Ind. Ct. App. 2004)
(footnote omitted). Similarly, we have noted that
a policy with a deductible obliges the insurer to respond to a
claim from “dollar one” (i.e., immediately upon tender), subject
to the insurer’s right to later recoup the amount of the deductible
from the insured. A policy subject to a SIR, in contrast, obliges
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the policyholder itself to absorb expenses up to the amount of the
SIR, at which point the insurer’s obligation is triggered.
Allianz Ins. Co. v. Guidant Corp., 884 N.E.2d 405, 410 n.2 (Ind. Ct. App. 2008)
(quotation marks and alterations omitted), trans. denied. Not surprisingly, “[a]n
insured maintains a SIR in order to reduce the cost of premiums on its
insurance policy.” Susan N.K. Gummow, No “SIR”! Insurer Can’t Avoid
Payment If Insured Files For Bankruptcy, Am. Bankr. Inst. J., Apr. 2005, at 18.
[11] Both the Indiana Supreme Court and this court have repeatedly recognized
that, as between an insurer and a single insured, the insurer’s responsibilities
arise only “[a]fter the self-insured retention amounts specified in the policies are
satisfied.” Cinergy Corp. v. Associated Elec. & Gas Ins. Servs., Ltd., 865 N.E.2d 571,
576-77 (Ind. 2007); see also Thomson Inc. v. Ins. Co. of N. Am., 11 N.E.3d 982,
1010-11 (Ind. Ct. App. 2014) (requiring the insured to show that “the SIR for
each ‘occurrence’ has been satisfied before any of [the insurer’s]
obligations . . . are triggered”), trans. denied. We have also held that “it is the
responsibility of the policyholder to prove this condition precedent to
coverage—SIR exhaustion—and unless and until it is able to do so, the duty to
defend is not triggered.” Allianz, 884 N.E.2d at 420; see also Monroe Guar., 816
N.E.2d 495-96 (holding that coverage is available to the insured once the SIR
has been satisfied). But the question of whether a SIR endorsement applies
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only to the insurer’s relationship to the named insured or also applies to
additional insureds is a question of first impression for our courts.4
[12] In light of the plain language of the instant CGL policy and SIR endorsement,
we agree with Zurich that it has no obligation to Walsh under the CGL policy
until the $500,000 SIR amount has been satisfied.5 “Self insured retention” is
defined within the SIR endorsement as “the amount or amounts which you or
any insured must pay for all compensatory damages and ‘pro rata defense costs’
which you or any insured shall become legally obligated to pay because of
damages arising from any coverage included in the policy.” Appellant’s App.
Vol. 3 at 71. Thus, substituting the endorsement and policy definitions where
appropriate, the SIR endorsement obliges the named insured as follows:
If a Per Occurrence [amount that the named insured or any
additional insured must pay] is shown . . . , [the named insured]
shall be responsible for payment of all damages and “pro rata
4
Further, none of the foreign authority cited by the parties is on all fours with the instant appeal. See Forecast
Homes, Inc. v. Steadfast Ins. Co., 105 Cal. Rptr. 3d 200, 203 (Cal. Ct. App. 2010) (identifying the issue on
appeal as whether an additional insured could invoke an insurer’s obligation to defend by paying the SIR
amounts in lieu of the named insured paying those amounts); FHP Tectonics Corp. v. Am. Home Assurance Co.,
57 N.E.3d 575, 584 (Ill. App. Ct. 2016) (concluding that the SIR endorsement, which stated that the insurer
would “pay on behalf of the Insured,” applied to both the named insured and additional insureds); Am. Nat’l
Fire Ins. Co. v. Nat’l Union Fire Ins. Co., 796 N.E.2d 1133, 1143-44 (Ill. App. Ct. 2003) (stating in dicta and
based on a highly limited review of the SIR endorsement’s language that that endorsement “refers only to the
named insured . . . and not to additional insureds . . . .”); see also Sherwood Constr. Co. v. Am. Home Assurance
Co., No. CIV-09-1395-HE, 2011 WL 6012605, at *4-5 (W.D. Okla. 2011) (reaching the same conclusion
reached in FHP Tectonics).
5
We reject Zurich’s suggestion that the SIR endorsement nullifies the fact that Roadsafe is the named
insured and Walsh is an additional insured under the CGL policy. To the contrary, the SIR endorsement
expressly recognizes “you or any insured,” that is, both the named insured and any additional insureds.
Appellant’s App. Vol. 3 at 71.
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defense costs” for each “occurrence”[] until [the named insured]
ha[s] paid damages equal to the Per Occurrence Amount . . . .
Id. at 68. In other words, the SIR endorsement shifts the initial cost burden
from Zurich to Roadsafe, the named insured, not just for Roadsafe’s damages
and defense costs but also for any additional insured’s damages and defense
costs. As such, the SIR endorsement amends Zurich’s obligation under the
CGL policy to defend Walsh by placing the first $500,000 of that burden on
Roadsafe.
[13] This plain reading of the SIR endorsement is supported by its other provisions.
In particular, in other places the SIR endorsement relies on the relationship
between Zurich and Roadsafe exclusively and without concern for additional
insureds, which is consistent with the SIR endorsement having placed the
burden to defend additional insureds on Roadsafe. For example, the SIR
endorsement states that: “you [Roadsafe] shall pay ‘pro rata defense costs’ as
they are incurred . . . ”; “you [Roadsafe] shall have the right and obligation to
settle” claims within the SIR amount, but “[y]ou [Roadsafe] may not settle any
claim or suit which exceeds” the SIR amount; and “[w]e [Zurich] shall be liable
only for the amounts of our share of ‘pro rata defense costs’ and damages in
excess of” the SIR amount. Id. at 69-70.
[14] Further, the SIR endorsement unambiguously conditions Roadsafe’s
compliance with its provisions as a “condition precedent to coverage” from
Zurich. Id. at 70. And there is no rational basis to apply the SIR endorsement
as a condition precedent to Zurich’s coverage of the named insured but not to
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Zurich’s coverage of additional insureds. Moreover, the SIR endorsement
prioritizes its obligations and definitions over any other provision of or
endorsement to the CGL policy, stating that, “in the event of conflict with any
other provisions elsewhere in this policy,” the SIR endorsement “shall control
the application of the insurance to which this endorsement applies.” Id. at 68.
And the SIR endorsement enabled Roadsafe to obtain the CGL policy from
Zurich at a reduced premium. Taken together, those provisions unambiguously
manifest the intent of the parties to the contracts, Zurich and Roadsafe, for the
SIR endorsement to control their relationship such that Roadsafe assumed all
costs and liability for the first $500,000 of any claim that might be made under
the CGL policy, regardless of whether that claim was against Roadsafe or an
additional insured.
[15] Nonetheless, Walsh asserts that the following language conflicts with Zurich’s
duty to defend or, in the alternative, creates an ambiguity in the SIR
endorsement that precludes summary judgment for Zurich and requires
summary judgment for Walsh:
D. Settlement of Claims
***
2. Excess of Self Insured Retention
With respect to any claim under this insurance which
has been tendered to us and which may exceed the “self
insured retention” amount shown . . . we have the right
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and duty to negotiate the settlement of such claim and
may pay any or all damages and “defense costs” on
your behalf, both within and excess of the applicable
“self insured retention” amount. Any such payments
made by us for damages or “defense costs” within the
“self insured retention” amount shall be reimbursed
promptly by you.
Id. at 71. According to Walsh, this provision “would be rendered meaningless”
by Zurich’s reading of the SIR endorsement. Appellant’s Br. at 12.
[16] We cannot agree with Walsh that that language, which pertains to Zurich’s
settlement obligations when a claim may exceed the SIR amount, has any
application on these facts. Walsh has not requested declaratory relief with
respect to Zurich’s potential obligation to negotiate a settlement. Rather,
Walsh has sought declaratory relief only with respect to whether Zurich owes
Walsh a duty to defend and a duty to provide indemnification. See Appellant’s
App. Vol. 2 at 61-62. The language relied on by Walsh creates no such
affirmative duties.
[17] We also reject Walsh’s argument that, “[i]f Zurich’s duty to provide coverage to
Walsh . . . is conditioned upon Roadsafe satisfying its $500,000 SIR amount,
then the [CGL p]olicy by definition cannot be primary as to Walsh.”
Appellant’s Br. at 12. Walsh is still a primary insured under the CGL policy
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and has no less status than any other primary insured.6 If Walsh disapproves of
its subcontractors obtaining SIR endorsements, Walsh can manage its
contractual relationships with its subcontractors accordingly.7
[18] In sum, we hold that, under the plain language of the SIR endorsement, Zurich
has no obligation under the CGL policy to defend or indemnify Walsh until
Roadsafe has satisfied the $500,000 SIR amount. Accordingly, we affirm the
trial court’s entry of summary judgment for Zurich.
[19] Affirmed.
Bailey, J., and May, J., concur.
6
Walsh also asserts that, given our reading of the SIR endorsement, a genuine issue of material fact exists
that precludes the entry of summary judgment because Zurich has not designated any evidence to
demonstrate that Roadsafe has not satisfied the SIR amount. We do not accept this argument. There is no
dispute on this record that Roadsafe has failed to defend or indemnify Walsh in the Maczuga case. Indeed,
that undisputed fact is the basis for Walsh’s third-party complaint against Roadsafe as well as Walsh’s
attempt to seek relief from Zurich in these declaratory judgment proceedings, and Zurich designated both of
those complaints in support of its motion for summary judgment in the instant case.
7
Though not relevant in light of the plain language of the SIR endorsement, we note that Walsh’s contract
with Roadsafe required Roadsafe to be “responsible for any . . . self-insured retention with respect to
coverage afforded Additional Insureds.” Appellant’s App. Vol. 4 at 16.
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