                                               FILED
                                             Aug 30 2012, 9:20 am
FOR PUBLICATION
                                                    CLERK
                                                  of the supreme court,
                                                  court of appeals and
                                                         tax court




ATTORNEYS FOR APPELLANTS:            ATTORNEY FOR APPELLEE,
                                     Beelman Truck Company:
PATRICK A. SHOULDERS
JEAN M. BLANTON                      TODD A. CROFTCHIK
Ziemer Stayman Weitzel & Shoulders   Seipp & Flick, LLP
Evansville, Indiana                  Lake Mary, Florida

KARL L. MULVANEY                     ATTORNEYS FOR APPELLEE,
NANA QUAY-SMITH                      North American Capacity
Bingham Greenbaum Doll, LLP             Insurance Company:
Indianapolis, Indiana
                                     JULIA BLACKWELL GELINAS
                                     MAGGIE L. SMITH
                                     DEAN R, BRACKENRIDGE
                                     CARRIE G. DOEHRMANN
                                     Frost Brown Todd, LLC
                                     Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

PEABODY ENERGY CORPORATION,          )
PEABODY COAL COMPANY, LLC, and       )
BLACK BEAUTY COAL COMPANY,           )
                                     )
      Appellants-Defendants and      )
      Third-Party Plaintiffs,        )
                                     )
             vs.                     )   No. 14A01-1112-CT-555
                                     )
RICHARD F. ROARK,                    )
                                     )
      Appellee-Plaintiff,
      and,                                )
                                          )
BEELMAN TRUCK COMPANY,                    )
                                          )
     Appellee-Third-Party Defendant,      )
                                          )
     and,                                 )
                                          )
NORTH AMERICAN CAPACITY INSURANCE )
COMPANY,                                  )
                                          )
     Appellee-Third-Party Counterclaim    )
     Plaintiff and Third-Party Defendant. )


                   APPEAL FROM THE DAVIESS CIRCUIT COURT
                       The Honorable Gregory A. Smith, Judge
                           Cause No. 14C01-0705-CT-194


                                     August 30. 2012


                          OPINION - FOR PUBLICATION

BARNES, Judge


                                     Case Summary

      Peabody Energy Corporation, Peabody Coal Company, LLC, and Black Beauty

Coal Company (collectively, “Peabody”) appeal the trial court’s grant of summary

judgment in favor of Beelman Truck Company (“Beelman”) and North American

Capacity Insurance Company (“NAC”). We affirm in part, reverse in part, and remand.

                                         Issue

      The dispositive issue we address is whether Peabody is an additional insured under

an insurance policy issued by NAC.


                                           2
                                                   Facts

          Peabody owns property in Daviess County where it conducts mining operations,

and Beelman is a trucking company.                 Beelman and Peabody entered into a Master

Performance Agreement (“MPA”), which became effective on April 5, 2005, and

continued for an initial term of one year. The MPA defined Peabody as “Owner” and

Beelman as “Contractor.” App. p. 280. The MPA provided in part:

                  18.     INDEMNITY AND INSURANCE.

                          A.      Contractor agrees to indemnify, defend, and
                          hold harmless Owner, its parent, subsidiaries, affiliates
                          and related companies and the officers, directors,
                          shareholders and employees of such companies
                          (collectively “Owner”) against any and all claims,
                          damages, losses and expenses, including attorney’s
                          fees and other legal expenses, by reason of liability
                          imposed or claimed to be imposed by law for damage
                          because of bodily injury (including death) or on
                          account of damage to property, sustained by any
                          person or persons, arising out of or in consequence of
                          the performance of the work called for by the Contract
                          whether or not such bodily injuries, death, or damage
                          to property arise or are claimed to have arisen in whole
                          or in part out of the negligence or any other grounds of
                          legal liability, including violation of any duty imposed
                          by a statute, or ordinance or regulation, on the part of
                          Contractor, the subcontractors, and the employees or
                          agents of Contractor and the subcontractor (but
                          excluding however, any liability caused by the sole
                          negligence or willful misconduct of employees or
                          agents of Owner).[1]

                          B.     Contractor shall obtain and continue in force,
                          during the term of the Contract at its own expense, the
                          following insurance coverages:


1
    The strikethrough modifications were handwritten and initialed.
                                                     3
       1.     Workers’       Compensation       and
       Occupational Disease Disability insurance as
       required by the laws of the state wherein the
       work is to be performed.

       2.     Employer’s Liability insurance with
       limits of $500,000 each occurrence, unless the
       laws of the state in which the work is to be
       performed precludes an independent right of
       action by an employee against an employer
       under common law.

       3.     Comprehensive Automobile Liability
       insurance with limits of $1,000,000 Bodily
       injury and Property Damage combined single
       limit.

       4.    Comprehensive General Liability and
       Property    Damage      insurance    including
       Operations, Protective, Products/Completed
       Operations, Broad Form Property Damage, and
       Contractual Liability coverages with limits of
       $1,000,000 Bodily injury and Property Damage
       combined single limit.

C.     All insurance policies must contain an
unqualified provision that the insurance carrier will
give Owner 30 days prior notice in writing of any
cancellation, change or lapse in such policy(s).

D.     All insurance policies shall name Owner, its
parent, subsidiaries, affiliates and related companies,
as additional insureds with respect to losses or claims
arising out of, or directly or indirectly related to, the
performance of this Contract.

E.     The parties hereto acknowledge that
Contractor’s insurance shall be the primary coverage
under the Contract.

F.    Prior to commencement of any work hereunder,
Contractor shall furnish to Owner (in form satisfactory
to Owner) a Certificate of Insurance showing that the

                        4
                     requirements of this Paragraph 17 [sic] have been
                     satisfied.

Id. at 281.

       Beelman had a commercial general liability insurance policy (“the Policy”) with

NAC, which was effective from December 1, 2004, to December 1, 2005. The Policy

contained an additional insured endorsement that provided:

              This endorsement modifies insurance provided under the
              following:

                     COMMERCIAL              GENERAL            LIABILITY
                     COVERAGE PART.

                                      SCHEDULE

              Name of Person or Organization:

                     Any person or organization to which you are
                     obligated by virtue of written contract to
                     provide insurance such as is afforded by this
                     policy, but only with respect to (1) occurrences
                     taking place after such written contract has been
                     executed and (2) occurrences resulting from
                     work performed by you during the policy
                     period.

              (if no entry appears above, information required to complete
              this endorsement will be shown in the Declarations as
              applicable to this endorsement.)

              WHO IS AN INSURED (Section II) is amended to include as
              an insured the person or organization shown in the Schedule
              as an insured but only with respect to liability arising out of
              your operations or premises owned by or rented to you.

Id. at 209 (emphasis added). A certificate of liability insurance was issued to Peabody

referencing the Policy by number. The certificate named Peabody as the certificate


                                            5
holder and provided, “Certificate holder is an additional insured with respect to the auto

and general liability.” Id. at 289.

       Richard Roark was employed by Beelman as a truck driver. On June 22, 2005,

while working for Beelman, Roark delivered a load of ash from a power plant to

Peabody’s mine. Roark backed the Beelman truck into a spot at the mine to dump the

load of ash. Roark got out of the truck to release the air brakes, which were controlled by

switches on the side of the trailer. As he walked toward the middle of the trailer to

release the switches, the ground gave away, and Roark went down into the ground past

his knee.

       On May 29, 2007, Roark filed a complaint against Peabody alleging that its

negligence caused injuries to his left foot. On March 25, 2009, Peabody demanded

coverage from NAC. In response, NAC determined that “Peabody is only an additional

insured with respect to liability arising out of Beelman’s operations or premises owned

by or rented to Beelman.” Id. at 182. NAC concluded that Roark’s claim did not arise

“from Beelman’s work” and, therefore, NAC had no duty to defend or indemnify

Peabody. Id.

       Peabody eventually filed a third-party complaint in Roark’s lawsuit requesting

indemnification from Beelman, alleging that Beelman had breached the MPA, and

seeking declaratory judgment regarding NAC’s obligation to provide coverage based on

the Policy. Beelman and NAC denied the allegations, and NAC sought a declaratory

judgment against Peabody. Peabody filed a motion for partial summary judgment against

NAC. NAC and Beelman also filed motions for summary judgment against Peabody.

                                            6
After the matter was fully briefed and a hearing was conducted, the trial court entered

final judgment in favor of Beelman and NAC and against Peabody. The trial court

summarized its twenty-five pages of findings and conclusions as follows:

             A.     The MPA excludes, [sic] and Beelman Truck Co.
             therefore has no duty to indemnify, defend or hold Black
             Beauty harmless when the sole allegations of negligence are
             against Black Beauty. The fact that Black Beauty will defend
             those allegations by alleging that Plaintiff was comparatively
             negligent does not operate to change that outcome.

             B.      The only potential risk that needs to be insured against
             in this case is Black Beauty’s own negligent maintenance of
             its own premises. That is the only negligence alleged in the
             Plaintiff’s Complaint and it is the only negligence for which
             Black Beauty could be held legally responsible. Paragraph 18
             of the MPA does not create or impose a contractual obligation
             on Beelman, to insure against that specific risk, i.e. the
             requisite meeting of the minds was lacking.

             C.      Because Beelman had no contractual duty to insure
             Black Beauty against claims/losses that Black Beauty
             negligently maintained its own premises, the insurance policy
             that is the subject of the Motions for Summary Judgment filed
             by North American Capacity and Black Beauty is not
             triggered. Because the MPA does not trigger Beelman’s
             North American Capacity insurance policy, Black Beauty’s
             claims against North American [C]apacity fail.

             D.     This case will return to its original procedural posture,
             Black Beauty defending itself against allegations that it
             negligently maintained premises that it owned and that were
             under its sole control.

Id. at 40. Peabody now appeals.

                                        Analysis

      Peabody argues that the trial court improperly granted NAC’s and Beelman’s

motions for summary judgment and denied its motion for summary judgment. “We

                                            7
review an appeal of a trial court’s ruling on a motion for summary judgment using the

same standard applicable to the trial court.” Perdue v. Gargano, 964 N.E.2d 825, 831

(Ind. 2012).    “Therefore, summary judgment is appropriate only if the designated

evidence reveals ‘no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.’” Id. (quoting Ind. Trial Rule 56(C)). Our

review of summary judgment is limited to evidence designated to the trial court. Id.

(citing T.R. 56(H)).     All facts and reasonable inferences drawn from the evidence

designated by the parties is construed in a light most favorable to the non-moving party,

and we do not defer to the trial court’s legal determinations. Id.

       Peabody argues that it is entitled to coverage from NAC as an additional insured

under the Policy. Alternatively, Peabody argues that, if it is not entitled to coverage

under the Policy, Beelman has breached the MPA by failing to provide the insurance

described in Section 18(D).2 Thus, we must first determine whether the Policy provides

coverage to Peabody under these circumstances.

       “Insurance policies are governed by the same rules of construction as other

contracts, and their interpretation is a question of law.” Masten v. AMCO Ins. Co., 953

N.E.2d 566, 569 (Ind. Ct. App. 2011), trans. denied. When interpreting an insurance

policy, our goal is to ascertain and enforce the parties’ intent as manifested in the policy,

and we construe the policy as a whole and consider all of the provisions of the policy and

not just individual words, phrases, or paragraphs. Id. “Because we construe insurance


2
   Peabody does not appeal the entry of judgment on its claim for indemnification against Beelman
pursuant to Section 18(A) of the MPA.
                                               8
policies as a whole in each case, prior cases that focus upon similar or identical clauses or

exclusions are not necessarily determinative of later cases because the insurance policies

as a whole may differ.” Id.

       The relevant portion of the Policy’s additional insured endorsement provides:

              WHO IS AN INSURED (Section II) is amended to include as
              an insured the person or organization shown in the Schedule
              as an insured but only with respect to liability arising out of
              your operations or premises owned by or rented to you.

App. p. 209 (emphasis added). In asserting that Peabody’s liability does not arise out of

Beelman’s operations, NAC relies on Liberty Mutual Ins. Co. v. Michigan Mutual Ins.

Co., 891 N.E.2d 99 (Ind. Ct. App. 2008), a case interpreting an additional insured

endorsement. In that case, Linda Swann, an employee of Trilithic, slipped and fell on a

snow and ice covered pathway leading from the employee parking lot to a door at the

back of the Triltihic facility, which Trilithic leased from Duke. Under the lease, it was

Duke’s responsibility to maintain common areas including the pathway where Swann

was injured. In accordance with the lease, Trilithic obtained a commercial general

liability policy from Michigan Mutual in which Trilithic was the named insured and an

endorsement designated Duke as an additional insured.              The additional insured

endorsement provided:

              WHO IS AN INSURED (Section II) is amended to include as
              an insured the person or organization shown in the Schedule
              but only with respect to liability arising out of the ownership,
              maintenance or use of that part of the premises leased to you
              and shown in the Schedule[.]




                                             9
Liberty Mutual, 891 N.E.2d at 100. Swann and her husband sued Duke, and Duke

tendered the defense of the action to Michigan Mutual pursuant to the additional insured

endorsement.      Michigan Mutual declined to defend or indemnify Duke.                      Litigation

ensued between Liberty Mutual, Duke’s insurer, and Michigan Mutual, and the trial court

eventually declared that Michigan Mutual had no obligation to defend or indemnify Duke

against the Swanns’ claims.

        On appeal, we noted that there were no Indiana cases interpreting the boilerplate

additional insured endorsement at issue.             Id. at 103.     After considering how other

jurisdictions had interpreted such provisions, we rejected a broad interpretation of the

provision and agreed “that more than an incidental connection with the leased premises is

required to obtain coverage under an additional insured endorsement.”3 Id. at 104. We

observed:

                       One of the primary functions of an additional insured
                endorsement in the landlord-tenant context is to protect the
                landlord from vicarious liability for acts of its tenant on the
                leased premises. Northbrook Ins. Co. v. American States Ins.
                Co., 495 N.W.2d 450. “The additional insured endorsements
                in these settings are meant to provide specialized protection

3
  The Liberty Mutual court did not reference Travelers Cas. & Sur. Co. v. Elkins Constructors, Inc., 2000
WL 724006 (S.D. Ind. 2000), which interpreted additional insured provisions similar to the one at issue
today. The Elkins court observed:

                Although the court cannot locate any reported opinions discussing the
                construction of “additional insured” provisions under Indiana law, the
                majority of courts to have considered the issue construe such provisions
                (which rely on language very similar to, or identical to, the language
                used in the additional insured provisions in the [relevant] policies)
                broadly, encompassing coverage to extend to liability beyond merely the
                additional insured’s vicarious liability for the actions of the named
                insured.

Elkins, 2000 WL 724006 at 2 (footnote omitted).
                                                   10
             rather than all-encompassing coverage.” United States Fid. &
             Guar. v. Drazic, 877 S.W.2d at 143.

Id.

      In analyzing the connection between the accident and the leased premises, we

considered that the accident occurred in a common area outside of the leased premises

and under Duke’s control, that there was no physical connection between the accident

and the leased premises or Trilithic’s business operations thereon, and that there was no

allegation that the ice and snow on which Swann slipped was caused by the leased

premises, was connected to work done on the leased premises, or had any other

significant connection with the leased premises. Id. at 105. We observed that the

accident arose out of Duke’s own failure to maintain the pathway from the parking lot to

the employee entrance and that “[t]he only way Swann’s fall was even remotely related to

the leased premises was due to the fact Swann was on her way to work.” Id. We deemed

this “isolated connection” to be insufficient to bring the accident within the coverage of

the policy under the additional insured endorsement and held that Michigan Mutual had

no duty to defend or indemnify Duke. Id.

      Even if we agree with Liberty Mutual that an expansive interpretation of an

additional insured endorsement such as the one here should be rejected, Liberty Mutual

does not resolve the question of whether Peabody is entitled to coverage under the Policy.

The policy language and facts of Liberty Mutual are easily distinguishable from the

policy language and circumstances before us today.




                                           11
       First, although both cases apparently involve negligence claims based on premises

liability theories, the relevant policy language is different. At issue here is whether the

liability arises “out of [Beelman’s] operations,” not whether the liability arises out of

“ownership, maintenance or use of” a leased premises, which was at issue in Liberty

Mutual. App. p. 209; Liberty Mutual, 891 N.E.2d at 100. Thus, although Liberty

Mutual’s focus on the “connection with the leased premises” may be appropriate in the

landlord-tenant context, is of limited application here. Id. at 104.

       In that regard, NAC’s suggestion that Peabody’s potential liability arises out of

Peabody’s own alleged negligence in maintaining its own property misses the mark

because it does not resolve the question of whether Peabody’s potential liability arises out

of Beelman’s operations. NAC also asserts that there is no contention that Peabody’s

liability “arose out of the actions of” Beelman and that Peabody does not face “liability

for Beelman’s operations.” Appellee NAC’s Brief p. 14. Because these assertions are

more narrowly worded than the actual language of the Policy, which refers to “liability

arising out of [Beelman’s] operations,” they are of little help in determining whether

Peabody is an additional insured under the Policy. App. p. 209.

       Aside from the differences in the policy language, Liberty Mutual is also factually

distinguishable because Roark was not on Peabody’s property as a means to an end—to

get to work—as Swann was. Instead, Roark was at Peabody’s mine as part of his

employment as a truck driver for Beelman.4 According to Roark’s complaint, while


4
  In its brief, Beelman does not dispute that Roark was at the mine “because of his employment with
Beelman.” Appellee Beelman’s Br. p. 5.
                                                12
working for Beelman, he delivered a load of ash from a power plant to the mine, where

he stepped in a hole and was injured. NAC’s letter denying coverage provides, “On June

22, 2005, Mr. Roark allegedly delivered a load of ash from the Petersburg Power Plant to

the defendants’ mine. During his delivery, Mr. Roark allegedly stepped in a hole and

suffered bodily injuries.” Id. at 180. In his deposition, Roark stated that he was directed

to drive the truck to “the high wall.” Id. at 607. According to Roark, he backed the truck

toward that area and then secured the truck. Roark described that process of securing the

truck and how he was injured as follows:

              Lock the brakes on it, trailer and the truck, and you get out.
              And all the Beelman trucks had outside switches which
              released the air bags on the truck so it would be solid when
              you raised it up in the air, you release the air brakes. You got
              switches on the side of the trailer. That’s where I’m walking
              when I step, when the ground gives away. I’m walking back
              to the middle ways of the trailer to release those switches, and
              the ground give way, and I went down into the ground up past
              my knee.

Id. at 608.

       The parties do not direct us to any designated evidence suggesting that Roark was

injured while acting outside the scope of his employment or while undertaking a task

unrelated to Beelman’s operations when he was injured. Cf. Davis v. LTV Steel, Co.,

716 N.E.2d 766 (Ohio App. 1998) (concluding that LTV was not an additional insured

“with respect to liability arising out of [Shafer’s] operations” for injuries incurred by

Shafer employees who were injured on LTV’s premises while performing a task “not

contemplated as part of Shafer’s duties pursuant to its contract with LTV.”). Unlike in

Liberty Mutual, the connection between Roark’s presence at the mine and his injuries

                                            13
was not “incidental” or “isolated;” instead, Roark’s injuries were directly related to his

work as a truck driver for Beelman. Liberty Mutual, 891 N.E.2d at 104, 105. Regardless

of whether Roark was injured because of Peabody’s sole negligence, the designated

evidence shows that Roark’s injuries—the basis of Peabody’s potential liability—arose

out of Beelman’s operations. Thus, Peabody is an additional insured under the Policy.

      As such, the trial erroneously entered summary judgment in favor of NAC and

against Peabody regardless of the language of the MPA. Because of our conclusion that

Peabody is an additional insured under the Policy, we necessarily conclude that Beelman

did not breach the MPA. Therefore, the trial court properly granted Beelman’s motion

for summary judgment.

                                       Conclusion

      Because Roark’s injuries arose out of Beelman’s operations, Peabody is an

additional insured under the Policy. As such, Peabody, not NAC, is entitled to summary

judgment on the declaratory judgment action. Further, because Peabody is an additional

insured under the Policy, Beelman did not breach the MPA. Thus, summary judgment in

favor of Beelman was appropriate. We affirm in part, reverse in part, and remand.

      Affirmed in part, reversed in part, and remanded.

VAIDIK, J., and MATHIAS, J., concur.




                                           14
