Peabody Energy Corp., Peabody Coal Co., LLC, and Black Beauty Coal Co. v. Richard F. Roark and Beelman Truck Co., and North American Capacity Ins. Co.

FILED
Nov 30 2012, 9:23 am
FOR PUBLICATION
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEYS FOR APPELLANTS: ATTORNEY FOR APPELLEE,
Beelman Truck Company:
PATRICK A. SHOULDERS
JEAN M. BLANTON TODD A. CROFTCHIK
Ziemer Stayman Weitzel & Shoulders Seipp & Flick, LLP
Evansville, Indiana Lake Mary, Florida
KARL L. MULVANEY ATTORNEYS FOR APPELLEE,
NANA QUAY-SMITH North American Capacity
Bingham Greenbaum Doll, LLP Insurance Company:
Indianapolis, Indiana
JULIA BLACKWELL GELINAS
MAGGIE L. SMITH
DEAN R. BRACKENRIDGE
CARRIE G. DOEHRMANN
Frost Brown Todd, LLC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
PEABODY ENERGY CORPORATION, )
PEABODY COAL COMPANY, LLC, and )
BLACK BEAUTY COAL COMPANY, )
)
Appellants-Defendants and )
Third-Party Plaintiffs, )
)
vs. ) No. 14A01-1112-CT-555
)
RICHARD F. ROARK, )
)
Appellee-Plaintiff, )
)
and, )
)
BEELMAN TRUCK COMPANY, )
)
Appellee-Third Party Defendant, )
)
and, )
)
NORTH AMERICAN CAPACITY INSURANCE )
COMPANY, )
)
Appellee-Third Party Counterclaim )
Plaintiff and Third Party Defendant. )
APPEAL FROM THE DAVIESS CIRCUIT COURT
The Honorable Gregory A. Smith, Judge
Cause No. 14C01-0705-CT-194
November 30, 2012
OPINION ON REHEARING - FOR PUBLICATION
BARNES, Judge
North American Capacity Insurance Company (“NAC”) petitions for rehearing
following our opinion in Peabody Energy Corp. v. Roark, 973 N.E.2d 636 (Ind. Ct.
App. 2012). We grant NAC’s petition for rehearing; however, we affirm our opinion in
all regards.
In our original opinion, we were asked to determine whether Peabody Energy
Corporation, Peabody Coal Company, LLC, and Black Beauty Coal Company
(collectively, “Peabody”) were additional insureds under an insurance policy (“the
Policy”) issued by NAC to Beelman Truck Company (“Beelman”). After considering
the language of the Policy’s additional insured endorsement and the designated
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evidence, we concluded that, because Richard Roark’s injuries arose out of Beelman’s
operations, Peabody was an additional insured under the Policy. Peabody, 973 N.E.2d
at 642.
In its petition for rehearing, NAC asserts that, although our opinion refers to
“coverage,”1 the opinion does not explain whether NAC had a duty to indemnify or only
a duty to defend. NAC claims that an open-ended obligation by NAC to indemnify
Peabody would be premature because the underlying case against Peabody is still
ongoing and it has not been determined whether Peabody is liable to Roark for any
damages. NAC asks us to hold that it only owes a duty to defend and to reserve the
determination regarding its duty to indemnify until the underlying case against Peabody
has been resolved.
Although NAC’s appellee’s brief acknowledged the general principle that an
insurer’s duty to defend is broader than its duty to indemnify, NAC made no argument
distinguishing between its potential obligation to defend and its potential obligation to
indemnify Peabody based on the facts of the case or the language of the Policy. Nor did
NAC argue that it would be premature to determine whether it owed a duty to
indemnify at this stage in the proceedings. Instead, throughout its brief, NAC
maintained that Peabody was “not entitled to defense or indemnity” from NAC because
Peabody was not an additional insured under the Policy. NAC’s Br. pp. 8, 15, 21, 23.
1
NAC used the term “coverage” throughout its appellee’s brief to describe what the additional insured
endorsement does and does not provide to an additional insured. See NAC’s Br. pp. 1, 6, 7, 8, 23. NAC
also used the term “coverage” repeatedly in its analysis of other cases.
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It is well settled that any question not argued on appeal cannot be raised for the
first time in a petition for rehearing. Carey v. Haddock, 881 N.E.2d 1050, 1051 (Ind. Ct.
App. 2008), opinion on reh’g, trans. denied. Accordingly, NAC may not argue for the
first time in its petition for rehearing that it only has a duty to defend Peabody or that it is
premature to determine whether it owes a duty to indemnify Peabody. We affirm our
opinion in all regards.
VAIDIK, J., and MATHIAS, J., concur.
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