The Davey Tree Expert Company and Davey Resource Group, Inc. v. The City of Indianapolis ( 2020 )

FILED
Apr 27 2020, 7:05 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEY FOR APPELLEE
Thomas R. Schultz Adam S. Willfond
Schultz & Pogue, LLP Office of Corporation Counsel
Indianapolis, Indiana Indianapolis, Indiana
Andrew H. Cox
Carolyn M. Cole
Thompson Hine LLP
Cleveland, Ohio
IN THE
COURT OF APPEALS OF INDIANA
The Davey Tree Expert April 27, 2020
Company and Davey Resource Court of Appeals Case No.
Group, Inc., 19A-CT-2326
Appellants/Cross-claim Defendants, Appeal from the
Marion Superior Court
v. The Honorable
John M.T. Chavis, II, Judge
The City of Indianapolis, Trial Court Cause No.
Appellee/Cross-claim Plaintiff 49D05-1709-CT-35165
Vaidik, Judge.
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Case Summary
[1] Steven Smock died after a tree fell onto his car while he was driving on an
Indianapolis street. Steven’s wife filed a wrongful-death lawsuit against the
City of Indianapolis (“the City”) and Davey Resource Group, Inc., and The
Davey Tree Expert Company (collectively, “Davey Tree”), whom the City had
hired to inventory trees. The complaint sets forth four counts, two against the
City (negligence and gross negligence) and two against Davey Tree (negligence
and gross negligence). The City filed a cross-claim for declaratory judgment
against Davey Tree, claiming that Davey Tree had to defend it according to
their contract. The City moved for judgment on the pleadings as to its cross-
claim, which the trial court granted. Davey Tree now brings this interlocutory
appeal.
[2] The parties agree that, according to the contract, Davey Tree’s defense
obligation is only triggered if the City is sued for Davey Tree’s negligence.
Because the claims against the City are based entirely on its conduct, Davey
Tree does not have to defend the City. We therefore reverse the trial court.
Facts and Procedural History
[3] In May 2013, the City and Davey Tree entered into a services contract, which
has been amended several times. See Appellee’s App. Vol. II pp. 22, 43, 45, 48.
The contract obligated Davey Tree to inventory trees in areas determined by the
City, “collect data for each individual tree inventoried using City protocol,” and
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“inspect all wooded right of ways and inventory any hazardous trees using
inventory protocol.” Id. at 33. In addition, Section 5.10 of the contract,
entitled “Indemnification,” addresses Davey Tree’s duty to defend and
indemnify the City under certain circumstances:
[Davey Tree] agrees to indemnify, defend, and hold harmless the
City of Indianapolis, Marion County, and their respective
officers, agents, officials and employees for any and all third
party claims, actions, causes of action, judgments and liens to the
extent they arise out of any negligent or wrongful act or omission
or breach of any provision of this Agreement by [Davey Tree] or
any of its officers, agents, employees or subcontractors regardless
of whether or not it is caused in part by the negligence of a party
indemnified hereunder.
Id. at 28.
[4] On September 17, 2016, Steven was driving east on West 91st Street between
Ditch Road and Spring Mill Road in Indianapolis when a “decomposing” tree
fell onto his car. Appellants’ App. Vol. II p. 40. Steven was taken to the
hospital, where he later died from his injuries. In September 2017, Steven’s
wife, Evelyn, as special administrator of Steven’s estate, filed a wrongful-death
complaint against the City, which she amended in August 2018 to include
Davey Tree as a defendant. The amended complaint sets forth four counts—
two against the City (negligence and gross negligence) and two against Davey
Tree (negligence and gross negligence).
[5] In November 2018, the City asked Davey Tree to defend it under the contract,
but Davey Tree refused. In January 2019, the City filed a cross-claim for
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declaratory judgment against Davey Tree, alleging that the wrongful-death
lawsuit “triggered [Davey Tree’s] obligation under the contract to defend the
City.” Appellee’s App. Vol. II p. 19. In April 2019, the City moved for
judgment on the pleadings as to its cross-claim. The trial court granted the
City’s motion.
[6] Davey Tree now brings this interlocutory appeal.
Discussion and Decision
[7] Davey Tree contends that the trial court erred in granting the City’s motion for
judgment on the pleadings on the City’s cross-claim. Judgment on the
pleadings is available where it is clear from the face of the pleadings that one
party is entitled to prevail as a matter of law. Ind. Trial Rule 12(C); ESPN, Inc.
v. Univ. of Notre Dame Police Dep’t, 62 N.E.3d 1192, 1195 (Ind. 2016). Pleadings
consist of a complaint and an answer, a reply to any counterclaim, an answer to
a cross-claim, a third-party complaint, an answer to a third-party complaint,
and any written instruments attached to a pleading. Hendricks Cty. v. Green, 120
N.E.3d 1118, 1122 (Ind. Ct. App. 2019), trans. denied. We review the trial
court’s ruling on a motion for judgment on the pleadings de novo. ESPN, 62
N.E.3d at 1195. Our review is confined to the pleadings, accepting well-
pleaded material facts in the complaint as true. Id.
[8] The issue is whether Davey Tree must defend the City under Section 5.10 of the
contract, which provides in part:
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[Davey Tree] agrees to indemnify, defend, and hold harmless
the City of Indianapolis, Marion County, and their respective
officers, agents, officials and employees for any and all third
party claims, actions, causes of action, judgments and liens to
the extent they arise out of any negligent or wrongful act or
omission or breach of any provision of this Agreement by
[Davey Tree] or any of its officers, agents, employees or
subcontractors regardless of whether or not it is caused in part
by the negligence of a party indemnified hereunder.
Appellee’s App. Vol. II p. 28 (emphases added).
[9] The parties agree that Davey Tree’s defense obligation is “only triggered if the
City is sued for Davey’s negligence . . . .” Appellants’ Reply Br. p. 2; see also
Appellee’s Br. p. 10 (“Davey must defend the City from Davey’s negligence in a
lawsuit if it arises from the negligent performance of its duties laid out in the
contract . . . .” ). What the parties disagree about is whether the City is being
sued in part for Davey Tree’s negligence (which would trigger Davey Tree’s
duty to defend) or whether the City is being sued for its negligence only (which
would not trigger Davey Tree’s duty to defend). To resolve this issue, we look
to the allegations in the complaint.
[10] The complaint sets forth two counts against the City—negligence and gross
negligence. The negligence count alleges:
23. [The City] and/or its agencies and departments, and each of
them, jointly and severally, had a duty to protect passersby from
harm, and to maintain, monitor, implement, review and/or
ensure that adequate measures were in place to prevent or curtail
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overgrowth and/or ensure the vegetative condition of flora
contained within its public right of way.
24. [The City] and/or its agencies and departments, and each of
them, jointly and severally, had a duty to protect Steven from
physical injury.
25. [The City] and/or its agencies and departments, and each of
them, jointly and severally, breached each and every one of the
foregoing duties, and as a direct and proximate result of such
breaches, [Evelyn] has sustained damages, including, but not
limited to, the loss of the love and companionship of Steven and
the damages that the Special Administrator is entitled to recover
pursuant to I.C. § 34-23-1-l.
Appellants’ App. Vol. II p. 41. The gross negligence count alleges that the City
“recklessly failed to perform its duties.”1 Id. at 43. The counts against the City
say nothing about Davey Tree or its negligence, let alone allege that the City is
“responsible for,” “liable for,” or “vicariously liable for” Davey Tree’s
negligence. Cf. Myers v. Bremen Casting, Inc., 61 N.E.3d 1205, 1211 (Ind. Ct.
App. 2016) (“In the complaint, the Myerses alleged the Defendants . . . were
vicariously liable as principals . . . .”), trans. denied; Ford v. Jawaid, 52 N.E.3d
1
The negligence count against Davey Tree alleges as follows:
27. [Davey Tree] and/or its agents and/or principals, and each of them, jointly and severally, had a
duty to locate and/or identify and inventory all trees in and/or around the Property, and to
determine and/or assess the relative risk of each tree with respect to the potential for failure and/or
the potential to cause harm.
Appellants’ App. Vol. II p. 42. The gross negligence count alleges that Davey Tree “recklessly failed to
perform its duties.” Id. at 43.
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874, 876 (Ind. Ct. App. 2016) (“The amended complaint alleged negligence by
Jawaid, negligence by the Hospital, . . . and vicarious liability of the Hospital
for Jawaid’s conduct.”). Thus, although the City claims that it “is not seeking a
defense for its own negligence,” Appellee’s Br. p. 17, the claims against the City
are based entirely on its conduct.
[11] Nevertheless, the City argues that “[w]hile separate counts are alleged against
the City and Davey, the allegations against the parties are inextricably
intertwined.” Appellee’s Br. p. 14. The City reasons: “If Davey did not
perform competently, as the allegations suggest, then the City would be in no
position to remedy (or know about) the dangerous condition which killed
[Steven]. Stated differently, the City’s negligence, in part, was caused by
Davey’s negligence.” Id. We acknowledge that there is a close relationship
between the allegations against the City and Davey Tree. This is because the
City hired Davey Tree to inventory dangerous trees, and a decomposing tree
fell and killed Steven. But the allegations against each party are different. The
negligence count against Davey Tree alleges that it had a duty to inventory and
assess the risk of trees in the area where the tree fell down—not that it had a
duty to cut down any trees—and that Davey Tree breached this duty. The
negligence count against the City alleges, among other things, that it had a duty
to “ensure the vegetative condition of flora contained within its public right of
way,” i.e., a duty to cut down any trees identified by Davey Tree as dangerous,
and that the City breached this duty. According to the complaint as it is
currently drafted, the City is being sued for its conduct only, not any conduct by
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Davey Tree.2 Because the City is being sued for its conduct only, the claims
against the City do not “arise out of” any act or omission by Davey Tree.
Accordingly, Davey Tree does not have to defend the City under the contract.
We therefore reverse the trial court.3
[12] Reversed.
Najam, J., and Tavitas, J., concur.
2
If the complaint alleged that the City negligently hired or supervised Davey Tree, then there might be a
duty to defend. This is because a claim of negligent hiring or supervision is ultimately based on the
negligence of the party hired or supervised. See Simpson v. OP Prop. Mgmt., LLC, 939 N.E.2d 1098, 1103 (Ind.
Ct. App. 2010) (“Simpson’s claim that the School District negligently hired and trained Matesick by
implication indicates that she was claiming that Matesick’s conduct was wrongful. We are hard pressed to
see how the School District could be negligent by hiring and training a bus driver who had done nothing
wrong.”). We do not read the complaint to set forth a claim for negligent hiring or supervision, and the City
does not argue that it sets forth such a claim.
3
In its order, the trial court also stated, “In the event that the trier of fact determines that the City is solely
responsible for [Steven’s] injuries, then Davey [Tree] has an argument that it is relieved from its
indemnification obligation.” Appellants’ App. Vol. II p. 16. Davey Tree challenges this conclusion, citing
the following language from the indemnification clause: “[Davey Tree] shall be relieved of its
indemnification obligation to the extent any injury, damage, death or loss is attributable to the acts or
omission of City.” Appellee’s App. Vol. II p. 28. Davey Tree contends that the “to the extent” language
means that it will be relieved of its indemnification obligation even if both parties are found partially
responsible—i.e., even if the City is not found “solely responsible”—as long as the City’s liability is based
solely on its own negligence and is not based on Davey Tree’s negligence. The City does not dispute that this
is the correct reading of the indemnification clause. Because the complaint as it is currently drafted does not
allow the City to be held liable for Davey Tree’s negligence, indemnification is not at issue.
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