                                                                         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.




Court of Appeals of Indiana | Opinion 19A-CT-2326 | April 27, 2020                           Page 1 of 8
                                            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

      Court of Appeals of Indiana | Opinion 19A-CT-2326 | April 27, 2020        Page 2 of 8
      “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

      Court of Appeals of Indiana | Opinion 19A-CT-2326 | April 27, 2020            Page 3 of 8
      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:


      Court of Appeals of Indiana | Opinion 19A-CT-2326 | April 27, 2020         Page 4 of 8
               [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


       Court of Appeals of Indiana | Opinion 19A-CT-2326 | April 27, 2020          Page 5 of 8
           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.



Court of Appeals of Indiana | Opinion 19A-CT-2326 | April 27, 2020                                     Page 6 of 8
       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


       Court of Appeals of Indiana | Opinion 19A-CT-2326 | April 27, 2020         Page 7 of 8
       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.

       Court of Appeals of Indiana | Opinion 19A-CT-2326 | April 27, 2020                                      Page 8 of 8
