ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael L. Schultz                                       ZURICH AMERICAN INSURANCE
Parr Richey Obremskey Frandsen &                         COMPANY
Patterson LLP                                            Kyle A. Lansberry            FILED
Indianapolis, Indiana                                    Lewis S. Wooton         Mar 28 2017, 9:22 am
                                                         Michael R. Giordano          CLERK
                                                         Lewis Wagner, LLP        Indiana Supreme Court
                                                                                     Court of Appeals
                                                         Indianapolis, Indiana         and Tax Court




                                                         ATTORNEYS FOR APPELLEE
                                                         ROADSAFE HOLDINGS, INC.
                                                         T. Allon Renfro
                                                         Swanson, Martin & Bell, LLP
                                                         Chicago, Illinois

                                                         Robert P. Conlon
                                                         Joyce F. Noyes
                                                         Walker Wilcox Matousek LLP
                                                         Chicago, Illinois



                                           IN THE
    COURT OF APPEALS OF INDIANA

Walsh Construction Company,                              March 28, 2017
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         45A04-1606-PL-1284
        v.                                               Appeal from the Lake Superior
                                                         Court
Zurich American Insurance                                The Honorable William E. Davis,
Company,                                                 Judge
Appellee-Defendant,                                      Trial Court Cause No.
                                                         45D05-1506-PL-43




Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017            Page 1 of 17
              and


      Roadsafe Holdings, Inc. d/b/a
      Roadsafe Traffic Systems, Inc.,
      Appellee-Intervener.




      Najam, Judge.


                                       Statement of the Case
[1]   Walsh Construction Company (“Walsh”) appeals the trial court’s entry of

      summary judgment in favor of Zurich American Insurance Company

      (“Zurich”) on Walsh’s complaint for declaratory judgment. Walsh raises three

      issues for our review, which we consolidate and restate as whether the trial

      court erred when it entered summary judgment for Zurich. As a matter of first

      impression, we hold that a self insured retention endorsement to a commercial

      general liability insurance policy requires the named insured to satisfy the

      amount of the endorsement, whether on its own behalf or on behalf of an

      additional insured, before the additional insured may seek to enforce the policy

      against the insurer. As that has not occurred here, we affirm the trial court’s

      entry of summary judgment for Zurich.


                                 Facts and Procedural History
[2]   In January of 2009, Walsh, a general contractor, hired Roadsafe Holdings, Inc.

      d/b/a Roadsafe Traffic Systems, Inc. (“Roadsafe”) to be Walsh’s subcontractor

      in the construction of a traffic exchange involving Interstates 65 and 80 in Lake
      Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017   Page 2 of 17
      County. Roadsafe’s work obligations included providing a safe traffic pattern

      through the work zone. Walsh’s contract with Roadsafe required Roadsafe to

      indemnify Walsh for any liability resulting from Roadsafe’s failure or

      negligence in its work. Accordingly, Walsh’s contract required Roadsafe to

      procure a commercial general liability insurance policy (“CGL policy”) that

      named Walsh as an additional insured on a primary and noncontributory basis.


[3]   Roadsafe obtained its CGL policy from Zurich. The CGL policy defined

      Roadsafe as the “Named Insured” and stated that, “[t]hroughout this policy[,]

      the words ‘you’ and ‘your’ refer to the Named Insured . . . . The word ‘insured’

      means any person or organization qualifying as such under Section II—Who Is

      An Insured.” Appellant’s App. Vol. 3 at 72. An endorsement attached to the

      CGL policy named as additional insureds any “person and organization where

      required by written contract,” such as Roadsafe’s contract with Walsh, “but

      only with respect to liability for ‘bodily injury’ . . . by your [Roadsafe’s] acts or

      omissions . . . .” Id. at 99. The CGL policy then provided as follows: “We

      [Zurich] will pay those sums that the insured becomes legally obligated to pay

      as damages because of ‘bodily injury’ . . . to which this insurance applies. We

      will have the right and duty to defend the insured against any ‘suit’ seeking

      those damages.” Id. at 72.


[4]   However, Roadsafe also obtained a $500,000-per-occurrence self insured

      retention endorsement (“the SIR endorsement”) to the CGL policy. The SIR

      endorsement amended the CGL policy as follows:



      Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017    Page 3 of 17
        The insurance provided by this policy is subject to the following
        additional provisions, which in the event of conflict with any other
        provisions elsewhere in the policy, shall control the application of the
        insurance to which this endorsement applies:


        1. Self Insured Retention and Defense Costs—Your Obligations


                 A. The “self insured retention” amounts stated . . . apply
                 as follows:


                     1. If a Per Occurrence Self Insured Retention Amount is
                     shown in this endorsement, you shall be responsible for
                     payment of all damages and “pro rata defense costs” for each
                     “occurrence”[] until you have paid damages equal to the Per
                     Occurrence amount . . . .


                                                ***


                 B. Defense Costs


                     Except for any “defense costs” that we may elect to
                     pay, you shall pay “pro rata defense costs” as they are
                     incurred . . . .


                 C. Settlement of Claim


                     1. Within Self Insured Retention


                     If any final judgment or settlement is less than the “self
                     insurance retention” indicated . . . above, you shall
                     have the right and obligation to settle all such claims or
                     suits . . . .


Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017           Page 4 of 17
                     2. Excess of Self Insured Retention


                     You may not settle any claim or suit which exceeds any
                     “self insured retention” amount indicated . . . without
                     our written permission to do so. . . .


                                                ***


                 H. Compliance


                     Compliance with the requirements set forth in this
                     endorsement is a condition precedent to coverage. . . .


        II. Our Rights and Obligations Excess of the Self Insured
        Retention


                                                ***


                 B. Damages Excess of Self Insured Retention—Per
                 Occurrence or Per Claim


                     We shall be liable only for the amounts of our share of
                     “pro rata defense costs” and damages in excess of the
                     “self insured retention” amounts . . . above . . . .


                                                ***


                 D. Settlement of Claims


                     1. Within Self Insured Retention




Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017      Page 5 of 17
                     We shall have, at our option, the right but not the
                     obligation or duty[] to negotiate the settlement of any
                     claim within the applicable “self insured retention”
                     amount, which in our opinion is deemed expedient.
                     But we shall obtain your consent prior to entering into
                     any settlement of any claim which is equal to or less
                     than the “self insured retention” amount. . . .


                     2. Excess of Self Insured Retention


                     With respect to any claim under this insurance which
                     has been tendered to us and which may exceed the “self
                     insured retention” amount shown . . . we have the right
                     and duty to negotiate the settlement of such claim and
                     may pay any or all damages and “defense costs” on
                     your behalf, both within and excess of the applicable
                     “self insured retention” amount. Any such payments
                     made by us for damages or “defense costs” within the
                     “self insured retention” amount shall be reimbursed
                     promptly by you.


        Definitions—


                 A. “Self insured retention” means:


                     the amount or amounts which you or any insured must
                     pay for all compensatory damages and “pro rata
                     defense costs” which you or any insured shall become
                     legally obligated to pay because of damages arising from any
                     coverage included in the policy.


                                                ***




Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017           Page 6 of 17
                          D. “Occurrence[,]” for purposes of this endorsement only,
                          means an “occurrence[,]” offense, accident, act, error or
                          omission[,] or any other such similar event, as defined or
                          used in our policy, that must occur in order to initiate
                          payment of covered losses under the policy terms and
                          conditions.


      Id. at 68-71 (emphases added).


[5]   On June 15, 2009, Boguslaw Maczuga was injured while operating his motor

      vehicle through the work zone’s traffic pattern. On June 27, 2011, Maczuga

      served Walsh with a Second Amended Complaint in which Maczuga alleged

      that Walsh had negligently created an unsafe traffic pattern.1 As a result of

      Maczuga’s complaint, on January 18, 2012, Walsh filed a third-party complaint

      against Roadsafe. In its complaint, Walsh alleged, in relevant part, that

      Roadsafe had failed to indemnify Walsh and that Roadsafe had breached its

      contract with Walsh. Specifically, Walsh’s third-party complaint stated that

      “[t]he Maczuga lawsuit seeks recovery from Walsh for its alleged negligence in

      connection with work that was to be performed by Road[s]afe” and that,

      “[f]ollowing service of process of the Maczuga lawsuit, Walsh tendered its

      defense and indemnity to Road[s]afe” but Roadsafe had “failed to either agree

      to indemnify or undertake Walsh’s defense.” Appellant’s App. Vol. 2 at 54-55.




      1
          Maczuga’s complaint did not state a sum certain that he sought in relief.



      Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017       Page 7 of 17
[6]   Thereafter, Walsh notified Zurich, pursuant to the terms of the CGL policy, of

      Maczuga’s lawsuit and requested that Zurich defend Walsh in that suit. Zurich

      denied Walsh’s request, and Walsh filed a complaint for declaratory judgment

      against Zurich in which Walsh alleged that Zurich had a duty to defend and

      indemnify Walsh. Id. at 61-62. Roadsafe intervened in the declaratory

      judgment action, and the parties moved for summary judgment. After a

      hearing, the trial court entered summary judgment for Zurich, stating:


              Zurich has no contractual obligation to cover Walsh as an
              additional insured at this time. First of all, the policy is a liability
              policy between Zurich and Roadsafe and no person or entity has
              sued or even made a claim against Roadsafe for any type of
              negligence. Also there is a [SIR endorsement] that requires the
              insured to pay the first $500,000.00 of costs and damages of any
              claim before Zurich becomes obligated to pay out on the policy.
              Since there has been no claim for negligence against Roadsafe,
              Roadsafe has paid nothing and has made no claim under the
              policy.


      Id. at 7. This appeal ensued.


                                     Discussion and Decision
[7]   Walsh appeals the trial court’s entry of summary judgment for Zurich. Our

      standard of review is clear:


              We review summary judgment de novo, applying the same
              standard as the trial court: “Drawing all reasonable inferences in
              favor of . . . the non-moving parties, summary judgment is
              appropriate ‘if the designated evidentiary matter shows that there
              is no genuine issue as to any material fact and that the moving
              party is entitled to judgment as a matter of law.’” Williams v.
      Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017      Page 8 of 17
              Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
              fact is ‘material’ if its resolution would affect the outcome of the
              case, and an issue is ‘genuine’ if a trier of fact is required to
              resolve the parties’ differing accounts of the truth, or if the
              undisputed material facts support conflicting reasonable
              inferences.” Id. (internal citations omitted).


              The initial burden is on the summary-judgment movant to
              “demonstrate [ ] the absence of any genuine issue of fact as to a
              determinative issue,” at which point the burden shifts to the non-
              movant to “come forward with contrary evidence” showing an
              issue for the trier of fact. Id. at 761-62 (internal quotation marks
              and substitution omitted). And “[a]lthough the non-moving
              party has the burden on appeal of persuading us that the grant of
              summary judgment was erroneous, we carefully assess the trial
              court’s decision to ensure that he was not improperly denied his
              day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
              916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
              omitted).


      Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to

      Hughley).


[8]   Moreover, this appeal requires the interpretation of a contract. Interpretation

      and construction of contract provisions are questions of law. John M. Abbott,

      LLC v. Lake City Bank, 14 N.E.3d 53, 56 (Ind. Ct. App. 2014). As such, cases

      involving contract interpretation are particularly appropriate for summary

      judgment. Id. And because the interpretation of a contract presents a question

      of law, it is reviewed de novo by this court. Jenkins v. S. Bend Cmty. Sch. Corp.,

      982 N.E.2d 343, 347 (Ind. Ct. App. 2013), trans. denied. We review the contract

      as a whole, attempting to ascertain the parties’ intent and making every attempt

      Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017   Page 9 of 17
      to construe the contract’s language “so as not to render any words, phrases, or

      terms ineffective or meaningless.”2 Four Seasons Mfg., Inc. v. 1001 Coliseum, LLC,

      870 N.E.2d 494, 501 (Ind. Ct. App. 2007). “And, in reading the terms of a

      contract together, we keep in mind that the more specific terms control over any

      inconsistent general statements.” DLZ Ind., LLC v. Greene Cty., 902 N.E.2d 323,

      328 (Ind. Ct. App. 2009).


[9]   The question presented in this appeal is whether the SIR endorsement amended

      Zurich’s obligation under the CGL policy to defend Walsh.3 Again, under the

      CGL policy Zurich agreed to “pay those sums that the insured becomes legally

      obligated to pay as damages because of ‘bodily injury’ . . . to which this

      insurance applies,” which imposed upon Zurich “the right and duty to defend

      the insured against any ‘suit’ seeking those damages.” Appellant’s App. Vol. 3

      at 72 (emphasis added). On appeal, Walsh and Roadsafe both argue that the

      SIR endorsement amends only Zurich’s relationship to Roadsafe and that it




      2
        We reject Walsh’s characterization of the SIR endorsement as “exclusionary.” Appellant’s Br. at 15-16. In
      any event, as explained below we conclude that the SIR endorsement is unambiguous.
      3
        The trial court concluded that “no person or entity has sued or . . . made a claim against Roadsafe for any
      type of negligence,” and Roadsafe argues on appeal that we should affirm the trial court’s entry of summary
      judgment on that basis. Appellant’s App. Vol. 2 at 7. We cannot agree. Walsh’s third-party complaint
      against Roadsafe alleged that the underlying and allegedly negligent acts were Roadsafe’s and, as such, that
      Roadsafe had a duty to indemnify Walsh. In other words, Walsh’s third-party complaint seeks to transfer
      any liability under Maczuga’s original claim of negligence from Walsh to Roadsafe and expressly does so on
      the basis that the underlying and allegedly negligent acts were Roadsafe’s. Accordingly, we reject Roadsafe’s
      argument on appeal that we should affirm the trial court’s entry of summary judgment on that basis.
      Similarly, we also reject Roadsafe’s argument that Walsh has not sufficiently alleged negligence on the part
      of Roadsafe for Walsh to have standing under the CGL policy as an additional insured. With respect to both
      of those arguments, Walsh’s third-party complaint against Roadsafe is sufficient for Walsh to invoke the
      CGL policy and its endorsements.



      Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017                       Page 10 of 17
       does not amend Zurich’s obligations under the CGL policy with respect to

       Walsh. Zurich, on the other hand, contends that the SIR amount must be

       satisfied before Zurich can have any obligations under the CGL policy. We

       conclude that Zurich’s reading of the SIR endorsement properly harmonizes the

       totality of that document’s language and applies the SIR endorsement as it was

       intended to be applied.


[10]   We have discussed SIR endorsements before, noting in particular the following:


               There are key differences between . . . deductible[s], which
               generally exist in primary policies, and retained amounts, which
               generally are found in umbrella policies or policies designed to be
               excess of a self-insured amount. One difference is that while a
               deductible is subtracted from a policy’s limits, thereby reducing
               an insurer’s total obligation to the insured, the full limits of a
               policy including a retained amount are available to the insured
               once that amount has been satisfied. See Douglas R. Richmond,
               Issues and Problems in “Other Insurance,” Multiple Insurance and Self-
               Insurance, 22 Pepp. L. Rev. 1373, 1449 (1995). Another key
               difference is that in a policy with a deductible, the insurer retains
               complete control of claims handling; in a policy with a retained
               amount, the insurer has no claims handling responsibility,
               particularly with respect to claims not exceeding the retained
               amount. See id.


       Monroe Guar. Ins. Co. v. Langreck, 816 N.E.2d 485, 495 (Ind. Ct. App. 2004)

       (footnote omitted). Similarly, we have noted that


               a policy with a deductible obliges the insurer to respond to a
               claim from “dollar one” (i.e., immediately upon tender), subject
               to the insurer’s right to later recoup the amount of the deductible
               from the insured. A policy subject to a SIR, in contrast, obliges

       Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017   Page 11 of 17
               the policyholder itself to absorb expenses up to the amount of the
               SIR, at which point the insurer’s obligation is triggered.


       Allianz Ins. Co. v. Guidant Corp., 884 N.E.2d 405, 410 n.2 (Ind. Ct. App. 2008)

       (quotation marks and alterations omitted), trans. denied. Not surprisingly, “[a]n

       insured maintains a SIR in order to reduce the cost of premiums on its

       insurance policy.” Susan N.K. Gummow, No “SIR”! Insurer Can’t Avoid

       Payment If Insured Files For Bankruptcy, Am. Bankr. Inst. J., Apr. 2005, at 18.


[11]   Both the Indiana Supreme Court and this court have repeatedly recognized

       that, as between an insurer and a single insured, the insurer’s responsibilities

       arise only “[a]fter the self-insured retention amounts specified in the policies are

       satisfied.” Cinergy Corp. v. Associated Elec. & Gas Ins. Servs., Ltd., 865 N.E.2d 571,

       576-77 (Ind. 2007); see also Thomson Inc. v. Ins. Co. of N. Am., 11 N.E.3d 982,

       1010-11 (Ind. Ct. App. 2014) (requiring the insured to show that “the SIR for

       each ‘occurrence’ has been satisfied before any of [the insurer’s]

       obligations . . . are triggered”), trans. denied. We have also held that “it is the

       responsibility of the policyholder to prove this condition precedent to

       coverage—SIR exhaustion—and unless and until it is able to do so, the duty to

       defend is not triggered.” Allianz, 884 N.E.2d at 420; see also Monroe Guar., 816

       N.E.2d 495-96 (holding that coverage is available to the insured once the SIR

       has been satisfied). But the question of whether a SIR endorsement applies




       Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017   Page 12 of 17
       only to the insurer’s relationship to the named insured or also applies to

       additional insureds is a question of first impression for our courts.4


[12]   In light of the plain language of the instant CGL policy and SIR endorsement,

       we agree with Zurich that it has no obligation to Walsh under the CGL policy

       until the $500,000 SIR amount has been satisfied.5 “Self insured retention” is

       defined within the SIR endorsement as “the amount or amounts which you or

       any insured must pay for all compensatory damages and ‘pro rata defense costs’

       which you or any insured shall become legally obligated to pay because of

       damages arising from any coverage included in the policy.” Appellant’s App.

       Vol. 3 at 71. Thus, substituting the endorsement and policy definitions where

       appropriate, the SIR endorsement obliges the named insured as follows:

                If a Per Occurrence [amount that the named insured or any
                additional insured must pay] is shown . . . , [the named insured]
                shall be responsible for payment of all damages and “pro rata



       4
         Further, none of the foreign authority cited by the parties is on all fours with the instant appeal. See Forecast
       Homes, Inc. v. Steadfast Ins. Co., 105 Cal. Rptr. 3d 200, 203 (Cal. Ct. App. 2010) (identifying the issue on
       appeal as whether an additional insured could invoke an insurer’s obligation to defend by paying the SIR
       amounts in lieu of the named insured paying those amounts); FHP Tectonics Corp. v. Am. Home Assurance Co.,
       57 N.E.3d 575, 584 (Ill. App. Ct. 2016) (concluding that the SIR endorsement, which stated that the insurer
       would “pay on behalf of the Insured,” applied to both the named insured and additional insureds); Am. Nat’l
       Fire Ins. Co. v. Nat’l Union Fire Ins. Co., 796 N.E.2d 1133, 1143-44 (Ill. App. Ct. 2003) (stating in dicta and
       based on a highly limited review of the SIR endorsement’s language that that endorsement “refers only to the
       named insured . . . and not to additional insureds . . . .”); see also Sherwood Constr. Co. v. Am. Home Assurance
       Co., No. CIV-09-1395-HE, 2011 WL 6012605, at *4-5 (W.D. Okla. 2011) (reaching the same conclusion
       reached in FHP Tectonics).
       5
         We reject Zurich’s suggestion that the SIR endorsement nullifies the fact that Roadsafe is the named
       insured and Walsh is an additional insured under the CGL policy. To the contrary, the SIR endorsement
       expressly recognizes “you or any insured,” that is, both the named insured and any additional insureds.
       Appellant’s App. Vol. 3 at 71.



       Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017                           Page 13 of 17
               defense costs” for each “occurrence”[] until [the named insured]
               ha[s] paid damages equal to the Per Occurrence Amount . . . .


       Id. at 68. In other words, the SIR endorsement shifts the initial cost burden

       from Zurich to Roadsafe, the named insured, not just for Roadsafe’s damages

       and defense costs but also for any additional insured’s damages and defense

       costs. As such, the SIR endorsement amends Zurich’s obligation under the

       CGL policy to defend Walsh by placing the first $500,000 of that burden on

       Roadsafe.


[13]   This plain reading of the SIR endorsement is supported by its other provisions.

       In particular, in other places the SIR endorsement relies on the relationship

       between Zurich and Roadsafe exclusively and without concern for additional

       insureds, which is consistent with the SIR endorsement having placed the

       burden to defend additional insureds on Roadsafe. For example, the SIR

       endorsement states that: “you [Roadsafe] shall pay ‘pro rata defense costs’ as

       they are incurred . . . ”; “you [Roadsafe] shall have the right and obligation to

       settle” claims within the SIR amount, but “[y]ou [Roadsafe] may not settle any

       claim or suit which exceeds” the SIR amount; and “[w]e [Zurich] shall be liable

       only for the amounts of our share of ‘pro rata defense costs’ and damages in

       excess of” the SIR amount. Id. at 69-70.


[14]   Further, the SIR endorsement unambiguously conditions Roadsafe’s

       compliance with its provisions as a “condition precedent to coverage” from

       Zurich. Id. at 70. And there is no rational basis to apply the SIR endorsement

       as a condition precedent to Zurich’s coverage of the named insured but not to
       Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017   Page 14 of 17
       Zurich’s coverage of additional insureds. Moreover, the SIR endorsement

       prioritizes its obligations and definitions over any other provision of or

       endorsement to the CGL policy, stating that, “in the event of conflict with any

       other provisions elsewhere in this policy,” the SIR endorsement “shall control

       the application of the insurance to which this endorsement applies.” Id. at 68.

       And the SIR endorsement enabled Roadsafe to obtain the CGL policy from

       Zurich at a reduced premium. Taken together, those provisions unambiguously

       manifest the intent of the parties to the contracts, Zurich and Roadsafe, for the

       SIR endorsement to control their relationship such that Roadsafe assumed all

       costs and liability for the first $500,000 of any claim that might be made under

       the CGL policy, regardless of whether that claim was against Roadsafe or an

       additional insured.


[15]   Nonetheless, Walsh asserts that the following language conflicts with Zurich’s

       duty to defend or, in the alternative, creates an ambiguity in the SIR

       endorsement that precludes summary judgment for Zurich and requires

       summary judgment for Walsh:


               D. Settlement of Claims


                                                       ***


                        2. Excess of Self Insured Retention


                            With respect to any claim under this insurance which
                            has been tendered to us and which may exceed the “self
                            insured retention” amount shown . . . we have the right

       Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017   Page 15 of 17
                            and duty to negotiate the settlement of such claim and
                            may pay any or all damages and “defense costs” on
                            your behalf, both within and excess of the applicable
                            “self insured retention” amount. Any such payments
                            made by us for damages or “defense costs” within the
                            “self insured retention” amount shall be reimbursed
                            promptly by you.


       Id. at 71. According to Walsh, this provision “would be rendered meaningless”

       by Zurich’s reading of the SIR endorsement. Appellant’s Br. at 12.


[16]   We cannot agree with Walsh that that language, which pertains to Zurich’s

       settlement obligations when a claim may exceed the SIR amount, has any

       application on these facts. Walsh has not requested declaratory relief with

       respect to Zurich’s potential obligation to negotiate a settlement. Rather,

       Walsh has sought declaratory relief only with respect to whether Zurich owes

       Walsh a duty to defend and a duty to provide indemnification. See Appellant’s

       App. Vol. 2 at 61-62. The language relied on by Walsh creates no such

       affirmative duties.


[17]   We also reject Walsh’s argument that, “[i]f Zurich’s duty to provide coverage to

       Walsh . . . is conditioned upon Roadsafe satisfying its $500,000 SIR amount,

       then the [CGL p]olicy by definition cannot be primary as to Walsh.”

       Appellant’s Br. at 12. Walsh is still a primary insured under the CGL policy




       Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017   Page 16 of 17
       and has no less status than any other primary insured.6 If Walsh disapproves of

       its subcontractors obtaining SIR endorsements, Walsh can manage its

       contractual relationships with its subcontractors accordingly.7


[18]   In sum, we hold that, under the plain language of the SIR endorsement, Zurich

       has no obligation under the CGL policy to defend or indemnify Walsh until

       Roadsafe has satisfied the $500,000 SIR amount. Accordingly, we affirm the

       trial court’s entry of summary judgment for Zurich.


[19]   Affirmed.


       Bailey, J., and May, J., concur.




       6
         Walsh also asserts that, given our reading of the SIR endorsement, a genuine issue of material fact exists
       that precludes the entry of summary judgment because Zurich has not designated any evidence to
       demonstrate that Roadsafe has not satisfied the SIR amount. We do not accept this argument. There is no
       dispute on this record that Roadsafe has failed to defend or indemnify Walsh in the Maczuga case. Indeed,
       that undisputed fact is the basis for Walsh’s third-party complaint against Roadsafe as well as Walsh’s
       attempt to seek relief from Zurich in these declaratory judgment proceedings, and Zurich designated both of
       those complaints in support of its motion for summary judgment in the instant case.
       7
         Though not relevant in light of the plain language of the SIR endorsement, we note that Walsh’s contract
       with Roadsafe required Roadsafe to be “responsible for any . . . self-insured retention with respect to
       coverage afforded Additional Insureds.” Appellant’s App. Vol. 4 at 16.



       Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017                       Page 17 of 17
