                                               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.
                                                  3
       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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