                                                                                FILED
                                                                            Oct 18 2019, 4:49 pm

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEYS FOR APPELLANTS                                   ATTORNEY FOR APPELLEE
      George M. Plews                                            James J. Hutton
      Jonathan P. Emenhiser                                      Indianapolis, Indiana
      Plews Shadley Racher & Braun LLP
      Indianapolis, Indiana




                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Global Caravan Technologies,                               October 18, 2019
      Inc.; Christopher Douglas;                                 Court of Appeals Case No.
      Husheng Ding; Kyle Fang; Chris                             18A-PL-2479
      Tzeng; C.H. Douglas & Gray,                                Appeal from the Marion Superior
      LLC; Thomas Gray; Doris                                    Court
      Roberts; and Red Wing Capital,                             The Honorable James B. Osborn,
      LLC,                                                       Judge
      Appellants-Defendants,                                     Trial Court Cause No.
                                                                 49D14-1709-PL-34008
              v.

      The Cincinnati Insurance
      Company,
      Appellee-Plaintiff



      May, Judge.


[1]   Global Caravan Technologies, Inc. (“Global”), Christopher Douglas, Husheng

      Ding, Kyle Fang, and Red Wind Capital, LLC (“Red Wing”), (collectively,
      Court of Appeals of Indiana | Opinon 18A-PL-2479 | October 18, 2019                           Page 1 of 27
      “Defendants”)1 appeal the trial court’s grant of summary judgment in favor of

      The Cincinnati Insurance Company (“Cincinnati”) in Cincinnati’s action

      requesting a declaration that it had no obligation to defend Defendants in other

      litigation. Defendants raise multiple issues, which we restate as:


               1. Whether Global’s voluntary intervention in a claim filed by
               Charles Hoefer Jr. is a “suit” under the language of Global’s
               insurance contract with Cincinnati; and


               2. Whether the insurance contract’s Employment Related
               Practices Exclusion (“ERP Exclusion”) relieves Cincinnati of any
               obligation to provide defense and indemnification coverage to
               Douglas, Ding, and Fang for Hoefer’s lawsuit.


      We affirm.


                             Facts and Procedural History
[2]   In January 2013, Global was formed by Charles Hoefer Jr. and sought to enter

      the recreational vehicle market. At relevant times, Hoefer possessed experience

      and intellectual property rights to materials related to manufacturing

      recreational vehicles. Douglas, Ding, and Fang were investors in Global;

      Douglas and Ding were executive officers of Global and Fang was a director at

      Global. Red Wing is a separate business entity owned by Douglas, Ding,




      1
        The other named defendants in this case do not join in this appeal; however, we list them on the cover
      because a party at the lower court is a party on appeal. See Indiana Appellate Rule 17(A) (“A party of record
      in the trial court . . . shall be a party on appeal.”).

      Court of Appeals of Indiana | Opinon 18A-PL-2479 | October 18, 2019                              Page 2 of 27
      Thomas Gray, Doris Roberts, and Steve Coons. Red Wing is an investor in

      Global. Cincinnati insures Global.


[3]   Through a series of events, Hoefer was removed as owner of Global. On May

      1, 2014, Hoefer filed a complaint in Marion County (“Hoefer Litigation”)

      against Ding, Douglas, Fang, Red Wing, Gray, Roberts, Christopher Tzeng,2

      C.H. Douglas & Gray, LLC, 3 and Steve Coons. 4 In that complaint, Hoefer

      presented several claims, including conspiracy, unjust enrichment, securities

      fraud, common law fraud, constructive fraud, breach of fiduciary duty,

      defamation, defamation per se, theft, and interference with contractual relations.


[4]   On May 14, 2014, Global, as the policyholder, notified Cincinnati of the Hoefer

      Litigation and requested defense and indemnification for Global, Douglas,

      Ding, and Fang. Cincinnati agreed to provide defense of Douglas, Ding, and

      Fang, and it assigned defense counsel for Douglas, Ding, and Fang without

      consulting Global. Global insisted Cincinnati provide defense to all parties

      related to Global, including Global, which was not a named defendant in the

      Hoefer Litigation. Global argued the counsel assigned to Douglas, Ding, and

      Fang was unacceptable due to an alleged conflict of interest. Cincinnati agreed

      to assign different counsel to Ding, Douglas, and Fang, but stated it would pay

      only a portion of the defense if different counsel was selected. Cincinnati



      2
          Tzeng works for Red Wing.
      3
          C.H. Douglas & Gray is related financially to Red Wing and is owned, in part, by Douglas.
      4
          Hoefer named Coons in his claim, but Coons is not a party to the action before us.


      Court of Appeals of Indiana | Opinon 18A-PL-2479 | October 18, 2019                             Page 3 of 27
      denied Global’s request for defense beyond that of Ding, Douglas, and Fang.

      Global rejected Cincinnati’s response to their request and retained separate

      counsel unapproved by Cincinnati.


[5]   On July 7, 2014, Global moved to intervene in the Hoefer Litigation, arguing

      that some of the claims related to incidents occurring at Global and that Hoefer

      sought to obtain Global assets as part of his claims. The trial court granted

      Global’s request over Hoefer’s objection. On October 8, 2014, Hoefer amended

      his claim. The amended claim did not include any allegations against Global.

      On December 1, 2014, Ding and Douglas filed offensive counterclaims against

      Hoefer. Also on December 1, 2014, Global filed an answer to Hoefer’s

      amended complaint and asserted an offensive counterclaim against Hoefer.


[6]   Meanwhile, in federal court, on October 8, 2014, Cincinnati filed an action

      seeking declaratory judgment that it had no duty to defend or indemnify Global

      in the Hoefer Litigation. Cincinnati and Global cross-moved for summary

      judgment. The district court granted summary judgment in favor of Cincinnati,

      and Global appealed. The Seventh Circuit Court of Appeals did not reach the

      merits of the appeal, as it determined it did not have jurisdiction over the matter

      because Hoefer was not a citizen of Indiana at the time the district court action

      was filed.


[7]   While the federal claims were pending, Douglas, Ding, Fang, and Red Wing

      retained Delk McNally, LLP, to defend them in the Hoefer Litigation.

      Douglas, Ding, Fang, and Red Wing incurred $50,715.37 in attorney’s fees and


      Court of Appeals of Indiana | Opinon 18A-PL-2479 | October 18, 2019      Page 4 of 27
      costs and submitted the relevant invoices to Cincinnati for payment. Cincinnati

      has not paid those invoices. As part of its involvement in the Hoefer Litigation,

      Global retained Ice Miller, LLC, and incurred $90,661.31 in attorney’s fees and

      costs, which Cincinnati has not reimbursed.


[8]   On September 5, 2017, CIC filed the present action, which was a complaint for

      declaratory judgment asking the trial court to declare that CIC is not required to

      defend or indemnify Defendants in the Hoefer Litigation. Defendants filed an

      answer and counterclaim. On March 7, 2018, Defendants filed a motion for

      partial summary judgment. On April 20, 2018, CIC filed a cross-motion for

      summary judgment. The trial court held oral argument on the motions on July

      31, 2018, and September 17, 2018. The trial court denied Defendants’ partial

      motion for summary judgment and granted summary judgment in favor of CIC,

      finding in relevant part: (1) CIC had no obligation to defend Global because

      “suit” as defined by the insurance contract does not include Global’s act of

      voluntarily intervening in the Hoefer Litigation, and (2) the ERP Exclusion

      relieves CIC from any obligation to provide defense or indemnification

      coverage for Douglas, Ding, and Fang.



                                  Discussion and Decision
                         Summary Judgment Standard of Review
[9]   We review summary judgment using the same standard as the trial court:

      summary judgment is appropriate only where the designated evidence shows

      there is no genuine issue of material fact and the moving party is entitled to
      Court of Appeals of Indiana | Opinon 18A-PL-2479 | October 18, 2019      Page 5 of 27
       judgment as a matter of law. Rogers v. Martin, 63 N.E.3d 316, 320 (Ind. 2016).

       All facts and reasonable inferences are construed in favor of the non-moving

       party. City of Beech Grove v. Beloat, 50 N.E.3d 135, 137 (Ind. 2016). Where the

       challenge to summary judgment raises questions of law, we review them de

       novo. Rogers, 63 N.E.3d at 320.


[10]   We do not modify our standard of review when the parties make cross motions

       for summary judgment. State Auto Ins. Co. v. DMY Realty Co., LLP, 977 N.E.2d

       411, 419 (Ind. Ct. App. 2012). “Instead, we must consider each motion

       separately to determine whether the moving party is entitled to judgment as a

       matter of law.” Id. When the trial court makes findings and conclusions in

       support of its order regarding summary judgment, we are not bound by such

       findings and conclusions, but they aid our review by providing reasons for the

       decision. Allen Gray Ltd. P’ship IV v. Mumford, 44 N.E.3d 1255, 1256 (Ind. Ct.

       App. 2015). We will affirm a summary judgment order on any theory or basis

       found in the record. Id.


                Insurance Policy Interpretation Standard of Review
[11]   When interpreting an insurance policy, we give plain and ordinary meaning to

       language that is clear and unambiguous. Meridian Mut. Ins. Co. v. Auto-Owners

       Ins. Co., 698 N.E.2d 770, 773 (Ind. 1998). Policy language is unambiguous if

       reasonable persons could not honestly differ as to its meaning. Id. To this end,

       we look to see “if policy language is susceptible to more than one

       interpretation.” Id. If an insurance policy contains ambiguous provisions, they


       Court of Appeals of Indiana | Opinon 18A-PL-2479 | October 18, 2019    Page 6 of 27
       are construed in favor of the insured. Id. “This strict construal against the

       insurer is driven by the fact that the insurer drafts the policy and foists its terms

       upon the customer. The insurance companies write the policies; we buy their

       forms or we do not buy insurance.” Id.


                                             Duty to Defend Global

[12]   The insurance contract between Global and Cincinnati provides for defense of

       the insured “against any ‘suit’ seeking damages.” (App. Vol. II at 72.) The

       policy further defines:


               21. “Suit” means a civil proceeding in which money damages
               because of “bodily injury”, “property damage” or “Personal and
               advertising injury” to which this insurance applies are alleged.
               “Suit” includes:


                        a. An arbitration proceeding in which such damages are
                        claimed and to which the insured must submit or does
                        submit with our consent;


                        b. Any other alternative dispute resolution proceeding in
                        which such damages are claimed and to which the insured
                        submits with our consent; or


                        c. An appeal of a civil proceeding.


       (Id. at 85.)


[13]   The trial court determined Global’s voluntary intervention in the Hoefer

       Litigation did not qualify as a “suit” under the insurance policy:


       Court of Appeals of Indiana | Opinon 18A-PL-2479 | October 18, 2019         Page 7 of 27
        An insurer’s duty to defend its insured is broader than its duty to
        indemnify. Yet, the duty to defend is determined by the
        examination of the “allegations of the complaint coupled with
        those facts known to or ascertainable by the insurer after
        reasonable investigation.” “‘[A]n insurer may properly refuse to
        defend where an independent investigation reveals a claim
        patently outside the risks covered by the policy.’” Moreover,
        when a policy exclusion applies to preclude coverage, the insurer
        has no duty to defend its insured. Therefore, while an insurer’s
        duty to defend is broader than its duty to indemnify an insured, it
        is not boundless. When an insurer has no duty to defend, it also
        has no duty to indemnify its insured under the policy.


        The Coverage B insuring agreement provides that [Cincinnati]
        has the right and duty to defend [Global] against any “suit”
        seeking to hold the named insured legally liable for damages
        because of covered “personal and advertising injury.” However,
        [Cincinnati] has no duty to defend insured [Global] under the
        [Cincinnati] Policy unless a “suit” has been brought against the
        insured for potentially covered damages in the [Hoefer
        Litigation]. The term “suit” is defined in the [Cincinnati] Policy
        to mean, in relevant part, “a civil proceeding in which money
        damages because of ‘bodily injury,’ ‘property damage’ or
        ‘personal and advertising injury’ to which this insurance applies
        are alleged.” While [Global] is an insured, it still has the burden
        to prove the Amended Complaint in the Underlying Lawsuit is a
        “suit” against [Global] to satisfy the Coverage B insuring
        agreement requirement.


        The Defendants/Counterclaimants overcomplicate the issue of
        whether Hoefer’s Amended Complaint constitutes a “suit”
        against [Global]. The Amended Complaint, itself, establishes that
        Hoefer’s claims and allegations are only asserted against the
        Named Defendants, not [Global]. As proven by the designated
        evidence and the court record in the Underlying Lawsuit,
        through motion practice Hoefer deliberately asserted no claims

Court of Appeals of Indiana | Opinon 18A-PL-2479 | October 18, 2019       Page 8 of 27
        for damages against [Global] in his Amended Complaint. Like
        Hoefer, the Defendants/Counterclaimants admit the Amended
        Complaint asserts no claims for damages against [Global], which
        is necessary to constitute a “suit” under the [Cincinnati] Policy.
        Despite their admission, the Defendants/Counterclaimants try to
        convince the Court that [Global’s] voluntary intervention as a
        Defendant to assert a non-compulsory, offensive Counterclaim
        against Hoefer in the Underlying Lawsuit renders the Amended
        Complaint a “suit” against [Global]. The Court is not
        persuaded.


        The Court is familiar with the procedural history of the
        Underlying Lawsuit since the matter is before it. Any
        characterization that this Court sua sponte ordered [Global’s]
        involvement in the Underlying Lawsuit is not substantiated by
        the designated evidence or the court record in the Underlying
        Lawsuit. As the court record demonstrates, Hoefer sought to
        amend his Original Complaint only after Hoefer opposed
        [Global’s] motion to intervene as a voluntary Defendant in the
        Underlying Lawsuit to assert a Counterclaim against him. On
        September 29, 2014, Hoefer sought leave to amend his Original
        Complaint to provide a more definitive statement as to his claims
        upon the request of several Named Defendants, and to add
        claims for piercing the corporation veil of [Red Wing] (not
        [Global]), civil conspiracy and unjust enrichment against the
        Named Defendants. As evident by the Amended Complaint,
        itself, [Global] was not added as a Named Defendant and no
        claims for damages are asserted against the corporation.


        Additionally, intervening Defendant [Global’s] filing of an
        Answer to Hoefer’s Amended Complaint to assert a
        Counterclaim against Hoefer in the Underlying Lawsuit does not
        render Hoefer’s Amended Complaint a “suit” against [Global]
        either. Neither [Global’s] Answer nor Counterclaim filed in the
        Underlying Lawsuit alter who the Amended Complaint is
        asserted against (the Named Defendants, not [Global]) or its

Court of Appeals of Indiana | Opinon 18A-PL-2479 | October 18, 2019      Page 9 of 27
               claims and allegations. As the designated evidence and court
               record establish, Hoefer did not seek to further amend the
               Amended Complaint.


               Accordingly, the Underlying Lawsuit does not constitute a “suit”
               before [Global] was granted leave to voluntarily intervene as a
               Defendant or after [Global’s] voluntary intervention and the
               filing of its Answer and Counterclaim in the Underlying Lawsuit.
               [Global’s] voluntary intervention as a Defendant in the
               Underlying Lawsuit and [Global’s] Counterclaim against Hoefer
               do not serve as a substitute for a “suit.”


               The Defendants/Counterclaimants have invited this Court to
               ignore well-settled Indiana law and the [Cincinnati] Policy
               language to impose a duty to defend upon [Cincinnati] in the
               absence of a “suit” against [Global]. The Court declines the
               invitation. Therefore, in the absence of a required “suit” against
               [Global], the Court finds that [Cincinnati] has no duty to defend
               or indemnify [Global] under the [Cincinnati] Policy in the
               Underlying Lawsuit before or after [Global’s] voluntary
               intervention and assertion of a Counterclaim. The Court also
               finds that [Cincinnati] has no contractual obligation under the
               [Cincinnati] Policy to reimburse [Global] any costs or expenses,
               including attorneys’ fees, it incurred to voluntarily intervene in
               the Underlying Lawsuit.


       (App. Vol. II at 27-9) (internal citations to record and external citations omitted;

       footnotes omitted). Global argues its voluntary intervention in the Hoefer

       Lawsuit qualifies as a “suit” under the language of the insurance contract and

       thus Global is entitled to defense under the policy.


[14]   We considered a somewhat similar set of facts in Mahan v. American Standard

       Insurance Company, 862 N.E.2d 669 (Ind. Ct. App. 2007), trans. denied. In that

       Court of Appeals of Indiana | Opinon 18A-PL-2479 | October 18, 2019      Page 10 of 27
       case, on October 25, 2003, Mahan was involved in an accident during which

       seven people were injured. Mahan’s automobile insurance policy with

       American Standard provided “liability limits for bodily injury in the amount of

       $50,000 per person and $100,000 per accident.” Id. at 671. The policy further

       stated: “We will defend any suit or settle any claim for damages payable under

       the policy as we think proper. HOWEVER, WE WILL NOT DEFEND ANY

       SUIT AFTER OUR LIMIT OF LIABILITY HAS BEEN PAID.” Id.

       (emphasis in original).


[15]   Based on the injuries incurred, American Standard anticipated the personal

       injury claims would exceed the policy limits. Therefore, on December 1, 2003,

       it sent Mahan a certified letter explaining the personal injury damages likely

       would exceed the limits of his policy and reminding him he would be

       personally responsible for his defense of any damage claims exceeding his

       policy limit. Id. American Standard also reaffirmed its commitment “to protect

       [his] interest within the provisions of [his] policy.” Id.


[16]   On March 1, 2004, American Standard filed a complaint in interpleader against

       Mahan and the victims of the accident and asked the court to allow American

       Standard to pay the policy limit of $100,000 to the court for distribution by the

       court to the seven injured people as the court deemed appropriate. Id. at 672.

       American Standard’s complaint also requested that, should the trial court allow

       it to pay $100,000 to the court for appropriate distribution at the court’s

       discretion, that American Standard was then relieved of any further obligation

       to Mahan under the policy with regard to the accident. Id.

       Court of Appeals of Indiana | Opinon 18A-PL-2479 | October 18, 2019      Page 11 of 27
[17]   Mahan filed an answer, contending American Standard had “an affirmative

       duty to afford defense to Mahan in this cause of action, and to afford such

       defense at every stage of the proceedings.” Id. At a hearing on October 28,

       2004, the victims agreed to the distribution of the interpleaded amount. Mahan

       did not appear at the hearing so the issue of whether American Standard had a

       duty to defend Mahan remained pending. Id. On November 19, 2004, Mahan

       filed a counterclaim against American Standard, alleging American Standard

       had


               breached its duty to defend Mahan by failing to attempt to secure
               a release of further claims by third parties against Mahan within
               the limits of the policy of insurance between [American] and
               Mahan; and, by failing to defend Mahan prior to interpleading
               policy limits into the court; and, by interpleading policy limits
               into the court before suit having been filed by third party
               claimants; and, by failing to advise Mahan prior to interpleader
               of the potential of excess liability so that Mahan could take steps
               to defend himself from excess liability to third party claimant.


       Id. at 673.


[18]   On December 29, 2004, the trial court entered a consent decree between

       American Standard and the victims for distribution of the $100,000 in

       interpleaded funds and indicated the payment was in full and complete

       satisfaction of the injured people’s claims against American Standard. Id. The

       trial court noted in its order that Mahan’s counterclaim remained pending.

       Mahan and American Standard filed cross motions for summary judgment on

       May 4, 2005, and June 2, 2005, respectively. The trial court held a hearing on

       Court of Appeals of Indiana | Opinon 18A-PL-2479 | October 18, 2019      Page 12 of 27
       the competing motions on July 26, 2005. On October 21, 2005, the trial court

       entered an order granting American Standard’s motion for summary judgment.

       In doing so, the trial court found:


               23. The issue of whether [American Standard] owed a duty to
               defend its insured [Mahan] against claims arising out of the
               October 25, 2003 accident became moot upon the entry of the
               consent decree precluding any claims against [Mahan] by those
               injured in the accident.


               24. [American Standard] did not owe a duty to defend [Mahan]
               in the declaratory judgment action requesting a determination of
               the enforceability of the [American Standard] policy’s duty to
               defend clause.


       Id. at 674.


[19]   Mahan appealed, arguing the trial court erred when it granted summary

       judgment in American Standard’s favor because American Standard could not

       relieve itself of its duty to defend Mahan under the automobile insurance policy

       by filing a complaint in interpleader. Id. at 676. Our court disagreed, holding

       American Standard’s duty to defend under the automobile insurance policy had

       not been triggered because none of the injured parties had filed suit against

       Mahan. In so holding, our court used the plain and ordinary meaning of the

       word, “suit”: “an action or process in a court for the recovery of a right or

       claim.” Id. (external citation omitted).


[20]   As stated in Mahan and in the trial court’s order in the case before us, an

       insurance company’s duty to defend is “determined from the allegations of the

       Court of Appeals of Indiana | Opinon 18A-PL-2479 | October 18, 2019      Page 13 of 27
       complaint and from the facts known or ascertainable by the insurer after an

       investigation had been made.” Ind. Farmers Mut. Ins. Co. v. Ellison, 679 N.E.2d

       1378, 1382 (Ind. Ct. App. 1997) (emphasis added), trans. denied. Here, the

       Hoefer’s amended complaint did not name Global as a defendant. Therefore,

       there were no allegations in the complaint for Cincinnati to investigate.

       Global’s voluntary intervention in the Hoefer litigation against the named

       defendants, some of whom were Global shareholders and/or employees, does

       constitute a “suit” under the plain language of the contract or the plain and

       ordinary meaning of the word, because no party has claimed Global owes

       damages of any kind.


[21]   Mahan is slightly distinct from the facts before us because, in this case, Global

       sought to intervene in a pending matter. The issue of whether a voluntary

       intervention in a pending matter constitutes a suit is an issue of first impression

       in Indiana, and we therefore may look for guidance from our sister

       jurisdictions. See McCallister v. McCallister, 105 N.E.3d 1114, 1118 (Ind. Ct.

       App. 2018) (“Where no Indiana case has addressed an issue, we may look to

       decisions from other jurisdictions for guidance.”). To that end, One-Gateway

       Associates v. Westfield Ins. Co., 184 F.Supp. 2d 527 (S.D. W. Va. 2002), follows

       the reasoning used in Mahan and applies it to facts better aligned to the case

       before us.


[22]   In One-Gateway Associates, Retail Designs, a landowner, sued the West Virginia

       Department of Transportation, Division of Highways (“DOH”) following an

       unfavorable result at the circuit court level regarding the taking of Retail

       Court of Appeals of Indiana | Opinon 18A-PL-2479 | October 18, 2019       Page 14 of 27
       Designs’ land for the purpose of providing a frontage road for a new Super Wal-

       Mart. Retail Designs sought a permanent injunction against DOH because

       DOH had opened to the public a temporary construction access road after its

       original frontage road plan had failed, and that road “effectively condemned”

       Retail Designs’ property without compensation. Id. at 529.


[23]   One-Gateway had been contracted by Wal-Mart to construct the originally-

       planned frontage road and then convey it to DOH. After Retail Designs filed

       suit against DOH, One-Gateway sought to intervene to “protect its claimed

       interest” in the subject matter of the litigation, the frontage road. Id. at 530.

       After being permitted to intervene in the litigation, Retail Designs filed an

       amended complaint, which named One-Gateway as a party, but explicitly

       stated “[t]he purpose behind the filing of this Complaint is to provide One-

       Gateway with the opportunity to present its arguments against the closure of

       the converted construction entrance.” Id. at 531 (internal citation omitted).


[24]   One-Gateway subsequently filed a claim against its insurer, Westfield, alleging

       Westfield had a duty to defend One-Gateway in the Retail Designs action

       under two of One-Gateway’s insurance policies with Westfield. In response,

       Westfield moved for summary judgment, arguing the policies’ language did not

       require Westfield to defend One-Gateway as part of the Retail Designs claim.

       The contract between One-Gateway and Westfield had similar provisions to

       those in the contract between Global and Cincinnati in that both included a

       duty to defend any suit which sought damages under “(1) bodily injury and

       property damage [and] (2) personal and advertising injury[.]” Id. at 533.

       Court of Appeals of Indiana | Opinon 18A-PL-2479 | October 18, 2019        Page 15 of 27
[25]   Based on those contract provisions, the District Court in One-Gateway granted

       summary judgment in favor of Westfield, holding:


               Based on the foregoing language, no coverage or duty to defend
               is present under the three Insuring Agreements for a variety of
               reasons. Foremost, coverage and defense duties do not arise
               because Retail Designs seeks no damages against One-Gateway.
               Only injunctive relief is sought in the Amended Complaint filed
               in the Circuit Court of Nicholas County. Further, it appears the
               injunctive relief is sought in actuality only against DOH. One-
               Gateway is a party to the case only because it demanded to be
               added by way of its petition for writ of prohibition. The
               requested payment by Westfield of One-Gateway’s associated
               fees and costs resulting from the latter’s voluntary, and indeed
               hard-fought, admission to the state court action is not supported
               by any coverage or defense-duty language found in the parties’
               insurance agreements.


       Id. at 533-4.


[26]   The facts before us are almost identical to those in One-Gateway. In its brief to

       support its motion to intervene in the Hoefer Litigation, Global claimed:


               The actions that form the basis of Hoefer’s Complaint were not
               taken by the named defendants, but rather by [Global]. It is
               axiomatic that [Global] has a legal interest in defending its own
               actions, which are at the center of the subject matter of this
               litigation. Furthermore, [Global] has a direct and immediate
               interest in the ultimate disposition of the case, as Hoefer seeks to
               obtain corporate assets and corporate control. [Global] seeks to
               intervene to defend each and every [Global] action Hoefer
               challenges, regardless what “count” Hoefer refers to it as, and to
               protect its assets and ownership.



       Court of Appeals of Indiana | Opinon 18A-PL-2479 | October 18, 2019        Page 16 of 27
       (App. Vol. VI at 130.) The trial court granted Global’s request to intervene on

       October 8, 2014. The same day, Hoefer filed an amended complaint but did

       not make any claims against Global or request damages from Global. Like in

       One-Gateway, Global’s intervention in the pending Hoefer Litigation was

       completely voluntary and there did not exist a claim for damages against

       Global, even after Hoefer amended his complaint following Global’s

       intervention. Thus, we conclude the trial court did not err when it determined

       Global’s action was not a “suit” under the insurance contract with Cincinnati.

       Cincinnati therefore did not have a duty to defend Global in the Hoefer

       Litigation.


                         Duty to Defend Douglas, Ding, and Fang
[27]   The insurance contact between Global and Cincinnati contains an exclusion for

       employment related practices (“ERP Exclusion”), which states:


               This insurance does not apply to:


                                                      *****


               (m). Employment Related Practices


               “Personal and advertising injury” to:


                        (1) A person arising out of any:


                                 (a) Refusal to employ that person;



       Court of Appeals of Indiana | Opinon 18A-PL-2479 | October 18, 2019   Page 17 of 27
                                 (b) Termination of that person’s employment; or


                                 (c) Other employment-related practices, policies,
                                 acts or omissions including but not limited to
                                 coercion, criticism, demotion, evaluation, failure to
                                 promote, reassignment, discipline, defamation,
                                 harassment, humiliation or discrimination directed
                                 at that person . . .


       (App. Vol. II at 73-4.)


[28]   Global argues the terms “arising out of” and “employment related” are

       ambiguous in the ERP Exclusion and thus we must interpret the language of

       the contract to favor Global. Should we determine those terms are

       unambiguous, Global then argues the defamatory comments alleged in the

       Hoefer Litigation do not arise out of Hoefer’s employment relationships with

       Ding, Douglas, and Fang; the ERP Exclusion does not apply to the facts before

       us; and Cincinnati is required to provide coverage under the insurance contract.


                                                “Arising Out Of”

[29]   Regarding the interpretation of the term “arising out of” the trial court relied on

       Barga v. Indiana Farmers Mut. Ins. Group, 687 N.E.2d 575, 578 (Ind. Ct. App.

       1997), reh’g denied, trans. denied, and Grinnell Mut. Reinsurance Co. v. Ault, 918

       N.E.2d 619, 626 (Ind. Ct. App. 2009):


               The Court finds that the phrase “arising out of” is not ambiguous
               as applied to the “employment-related” defamation claims in the
               Underlying Lawsuit. Even if this Court were to interpret “arising
               out of” to require an “efficient and predominating cause,” as

       Court of Appeals of Indiana | Opinon 18A-PL-2479 | October 18, 2019           Page 18 of 27
               articulated in Barga, the ERP exclusion would still preclude
               coverage for the Underlying Lawsuit defamation claims. In his
               Amended Complaint, Hoefer alleges the sustained injury to his
               professional reputation was caused by Ding, Douglas and Fang’s
               defamatory statements. The efficient and predominate cause of
               injury to Hoefer’s professional reputation is the alleged
               employment-related defamatory statements made by Ding,
               Douglas and/or Fang, individually, and ostensibly through
               [Global] while under their illegitimate control. As stated in
               Grinnell, the causal connection between his injured professional
               reputation and the alleged employment-related defamatory
               statements could not be more direct.


       (App. Vol. II at 37.) Defendants argue the term “arising out of” is ambiguous

       and thus it must be construed in their favor. We disagree.


[30]   As we have long held, “[a]n insurance contract will be ambiguous only if

       reasonable persons upon reading the contract would differ as to the meaning of

       its terms, and an ambiguity is not established simply because controversy exists,

       and one party’s interpretation of the contract is contrary to that asserted by the

       opposing party.” Meridian Mut. Ins. Co. v. Cox, 541 N.E.2d 959, 961 (Ind. Ct.

       App. 1989), trans. denied. The term “arising out of” has been examined multiple

       times by this Court, albeit in the context of whether an insurance company was

       liable to a third party. See Barga, 687 N.E.2d at 578 (interpreting “arising out

       of” in a case involving a third party and the insurance company); and see

       Grinnell, 918 N.E.2d at 627-8 (interpreting “arising out of” as it pertained to

       payment of a claim to a third party). Defendants argue that because Barga and

       Grinnell address the issue as framed between a third party and the insurer, those

       cases do not apply here because in this case the issue of ambiguity exists
       Court of Appeals of Indiana | Opinon 18A-PL-2479 | October 18, 2019      Page 19 of 27
       between a policyholder and an insurance company. Defendants assert because

       there is no Indiana case on point, we must look to our sister jurisdictions for

       guidance.


[31]   However, in Moons v. Keith, 758 N.E.2d 960 (Ind. Ct. App. 2001), trans. denied,

       we examined the phrase “arising out of” as it related to coverage claimed by the

       policyholder. In Moons, Williams and Moons were injured when they were

       traveling in their car and were shot seventeen times by Keith, who was traveling

       in another car. Id. at 961-2. Williams sought coverage for his injuries and

       Moons’ injuries under the uninsured motorist benefits provision of his

       automobile insurance with State Farm Insurance Company. State Farm denied

       coverage, contending Williams’ and Moons’ injuries did not “arise out of”

       Keith’s use of his uninsured vehicle. Id. at 962. Williams and Moons filed a

       claim against State Farm and Keith, and the trial court agreed with State Farm

       that Williams and Moons’ injuries did not “arise out of” Keith’s use of his

       vehicle. Williams and Moons appealed. Id.


[32]   On appeal, our court examined past cases interpreting the phrase “arising out

       of,” including Ind. Lumbermens Mut. Ins. Co. v. Statemans Ins. Co., 260 Ind. 32,

       291 N.E.2d 897 (1973), upon which the holdings in Barga and Grinnell rely.

       Like Barga and Grinnell, Lumbermens examined the phrase “arising out of” as it

       related to whether a homeowner’s policy or a commercial truck liability policy

       was responsible for the payment of injuries incurred when a delivery truck

       driver fell down a homeowner’s stairs while he was delivering a water softener.

       Id. at 32, 291 N.E.2d at 898. In Lumbermens, our Indiana Supreme Court

       Court of Appeals of Indiana | Opinon 18A-PL-2479 | October 18, 2019      Page 20 of 27
       recognized its interpretation of the term “arising out of” was not aimed at

       construing the contract in favor of the insurance company or the policyholder,

       and thus the Court could “seek out the general intent [of the language in the

       insurance contract] from a neutral stance.” Id. at 34, 291 N.E.2d at 899.


[33]   Lumbermens held for an injury to “arise out of” the use of a vehicle, the use of

       the vehicle must be the “efficient and predominating cause” of the injury. Id.

       In so holding, our Indiana Supreme Court explained:


               Before there is coverage under a policy extending to loading and
               unloading, there must be some connection between the use of the
               insured vehicle and the injury, and unless the court can
               determine that the loading or unloading of the vehicle was an
               efficient and producing cause of the injury, there is no right of
               indemnity for the accident. In other words, liability of an
               insurance company under the policy depends on the existence of
               a causal relationship between the loading or unloading and the
               injury, and if the injury was proximately due to the unloading,
               the insurance company is liable, while if the accident had no
               connection with the loading or unloading there is no liability.


       Id. (quoting 8 Blashfield, Automobile Law & Practice § 317.10 (1966)).


[34]   In Moons, our court applied Lumbermens to a situation involving a dispute in

       coverage between an insurance company and a policyholder. The court stated,

       “in order to find coverage, there must be a causal connection or relationship

       between the vehicle and the injury.” Moons, 758 N.E.2d at 964. The same is

       true in the case before us. As the dispute about the existence of coverage for

       Ding, Douglas, and Fang is between the policyholder, Global, and the


       Court of Appeals of Indiana | Opinon 18A-PL-2479 | October 18, 2019     Page 21 of 27
       insurance company, Cincinnati, we conclude the term “arising out of” is not

       ambiguous. It is well-established that coverage exists when there is a “causal

       connection or relationship” between the injury and the alleged object of the

       insurance, here the alleged actions of the insureds.


                                            “Employment Related”

[35]   Regarding the interpretation of the term “employment related,” the trial court

       found:


               In the Underlying Lawsuit, Hoefer alleges that Ding, Douglas
               and Fang made defamatory statements about him which injured
               his professional reputation while he was still employed with
               [Global] and serving as its CEO and a director on the Board. He
               also alleges that his professional reputation was injured by a
               public statement issued by Ding, Douglas and Fang, ostensibly
               through Global while under illegitimate control, in RV industry
               media outlets. In the public statement, Ding states that Hoefer’s
               Underlying Lawsuit “demonstrates the same emotional, irrational
               and dangerous behavior that led to his necessary separation from
               the company.” (Emphasis added.)


               None of the alleged defamatory statements involve a relationship
               between Hoefer and Ding, Douglas and Fang outside his
               [Global] employment. This Court finds that the alleged
               defamatory statements that caused injury to Hoefer’s professional
               reputation, relate to and are connected to his [Global]
               employment, including Ding’s statement that Hoefer’s irrational
               and dangerous behavior necessitated his termination as [Global]
               CEO and his removal as a [Global] director. The “employment-
               related” defamation claims are precisely the claims that the
               contracting parties – [Cincinnati] and [Global] – agreed are
               excluded by the ERP exclusion under the [Cincinnati] Policy.


       Court of Appeals of Indiana | Opinon 18A-PL-2479 | October 18, 2019    Page 22 of 27
       (App. Vol. II at 21.) In so concluding, the trial court relied upon Peerless Indem.

       Ins. Co. v. Moshe & Stimson LLP, 22 N.E.3d 882 (Ind. Ct. App. 2014), trans.

       denied. Defendants nevertheless argue the term “employment-related” is

       ambiguous because there exists non-binding authority from our sister

       jurisdictions that support their contention. We disagree with that contention.


[36]   In Peerless, siblings owned a law firm together. When Moshe, the sister,

       attempted to leave the law firm, her brother, Stimson, allegedly made

       statements that she considered defamatory. Moshe sued Stimson, and Stimson

       filed a claim under the law firm’s insurance policy for defense and

       indemnification. Id. at 883. Peerless, the insurance company, filed a summary

       judgment motion arguing it had no duty to defend Stimson because the alleged

       defamation fell under the insurance policy’s exclusion for employment-related

       practices. Id. The trial court granted summary judgment in favor of Stimson,

       and Peerless appealed.


[37]   On appeal, we determined the main issue before us was whether the term

       “employment-related” was ambiguous. Stimson argued the term was

       ambiguous because the parties disagreed as to its meaning. Id. at 886. We

       disagreed and noted “employment-related” was not ambiguous “simply

       because a controversy exists and [Stimson’s] interpretation differs from

       Peerless’s.” Id. The same is true here - the term “employment-related” is not

       ambiguous for the mere fact that Defendants think it is, and we decline to

       conclude the term is ambiguous as used in the insurance contract.



       Court of Appeals of Indiana | Opinon 18A-PL-2479 | October 18, 2019      Page 23 of 27
                                        Application of ERP Exclusion

[38]   In determining the meaning of “employment-related” as it pertained to the

       insurance contract, our court reasoned in Peerless:


               Black’s Law Dictionary defines “employment” in many ways,
               including “the quality, state, or condition of being employed; the
               condition of having a paying job.” Black’s Law Dictionary 641
               (10th ed. 2014). “Related,” in turn, means “connected in some
               way; having relationship to or with something else....” Id. at
               1479. Applying these plain and ordinary definitions, we
               conclude - as the trial court initially did - that [Moshe’s] claims
               against her brother relate to her job: after [Moshe] told [Stimson]
               she would be leaving the firm, he allegedly refused to dissolve the
               partnership, seized control of the firm’s assets and refused to pay
               [Moshe] her regular income, refused to turn over client files and
               certain personal property belonging to [Moshe], and began
               making “accusations about [Moshe’s] personal integrity and her
               professional competence.” Appellant’s App. p. 168. These acts
               are connected to [Moshe’s] employment at Moshe & Stimson
               LLP; as a result, they are not covered under the policy by way of
               the exclusionary clause.


       Id. at 886.


[39]   The same reasoning applies to the case before us. In its order, the trial court

       summarized Hoefer’s defamation claims against Douglas, Ding, and Fang:


               In the Underlying Lawsuit, Hoefer asserts the following
               allegations in support of his defamation, defamation per se and
               conspiracy to defame claims:


               13. The Named Defendants - including Ding, Douglas, and
               Fang - “sabotage[d] . . . and defame[d] him in order to preserve

       Court of Appeals of Indiana | Opinon 18A-PL-2479 | October 18, 2019        Page 24 of 27
        their selfish and illegal interests,” because they were “so driven to
        complete their China land deal.”


        14. His corporation, [Global], “many of his equities, his job, his
        dreams, his intellectual property, and his promised long-term
        prospects were stolen by - and millions of dollars in [Global
        equities] were destroyed by (and his professional reputation
        disparaged by) - people who were responsible to him as
        fiduciaries seeking selfish enrichment.” The Named Defendants
        “have destroyed [Global], defrauded [Hoefer] of promises of
        equity in other ventures, and irreparably harmed and defamed
        [him] - all in an effort to quickly line their own pockets with ill-
        gotten cash in China.”


        15. A March 7, 2014 [Global] board meeting was held and he,
        Ding, Douglas and Fang were in attendance. During the
        meeting, Ding informed Hoefer that “Weichai was the
        Defendants’ only focus for capital, that the Defendants’ [sic]
        planned to gut [Global], and that [he] would be offered millions
        in quick cash if he joined the plan.” Ding also allegedly told
        Hoefer that “Weichai was the only investment prospect for
        [Global] (Ding confirmed this on March 9, 2014, writing
        ‘Weichai may be the only viable option’).” Later, “[o]n April 5,
        2014, Ding wrote to [Hoefer,] Douglas, and Fang that he never
        stated Weichai was the only investment option for [Global],
        Ding called [Hoefer] a liar, wrote that luxury manufacturing
        would only remain in the U.S. for the foreseeable future, and
        ranted with a lengthy dissertation laden with lies and material
        contradiction.”


        16. In April 2014, the Named Defendants’ - including Ding,
        Douglas and Fang - efforts to “oust [him] from [Global] included
        disparagements and character assassinations directed to
        [Global’s] employees, attorneys, investors, partners and other
        individuals.” These defamations were professionally brutal,


Court of Appeals of Indiana | Opinon 18A-PL-2479 | October 18, 2019        Page 25 of 27
        falsely alleging that [he] had stolen intellectual property and that
        [he] was a liar.”


        17. Purdue University’s Director of Motorsports Danny White
        left a voicemail calling Hoefer a “con-man” “after talking with
        Ding in mid-April 2014” which is “[e]vidence that these
        defamations” occurred while Hoefer was [Global’s] CEO.


        18. [Global’s] intellectual property attorney, [sic] also told
        Hoefer that “Douglas and Ding had fully informed him of [his]
        ‘theft’ through the month of April 2014.”


        19. While under the Named Defendants’ illegitimate control of
        [Global], Ding, Douglas and Fang “publicly humiliated [him] by
        issuing through [Global] a public and severely defamatory
        statement against [him] after kicking him to the curb, calling
        [him] ‘dangerous’ and ‘irrational’ in major RV industry media
        such as RV Business, RV-Pro, and RV Daily Report, and also in
        the Indianapolis Business Journal.” The May 9, 2014 RV Daily
        Report article entitled “Global Caravan Technologies Responds
        to Hoefer Suit” referred to Hoefer’s Amended Complaint
        provides, in relevant part:


        ‘Mr. Hoefer never made any cash investment in the company.
        While Mr. Hoefer remains a minority shareholder, his attempts
        to claim [Global] as his own at the expense of other shareholders
        is just wrong.’ Ding explained, ‘In fact, his lawsuit, which reads
        as sensationalistic, defamatory, and error-ridden, demonstrates
        the same emotional, irrational and dangerous behavior that led to
        his necessary separation from the company.’


(App. Vol. II at 18-20) (internal citations and emphases omitted).




Court of Appeals of Indiana | Opinon 18A-PL-2479 | October 18, 2019        Page 26 of 27
[40]   All of the findings indicate actions that occurred while Hoefer was employed by

       [Global] and were allegedly perpetrated by Ding, Douglas, and Fang, all

       employees of [Global]. The statements were made regarding Hoefer’s

       performance as related to his employment with [Global]. Therefore, the

       allegations in the Hoefer Litigation fall squarely within that category of actions.

       The trial court did not err when it granted summary judgment in favor of

       [Cincinnati] in this matter.



                                                Conclusion
[41]   Global’s involuntary intervention in the Hoefer Litigation was not a “suit” as

       defined by the insurance contract between Cincinnati and Global.

       Additionally, the ERP Exclusion precluded coverage by Cincinnati for

       Douglas, Ding, and Fang. Accordingly, the trial court did not err when it

       granted summary judgment in favor of Cincinnati, and we affirm.


[42]   Affirmed.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinon 18A-PL-2479 | October 18, 2019      Page 27 of 27
