MEMORANDUM DECISION
                                                                    Jul 22 2015, 9:37 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
Stephen C. Wheeler                                        GERALD T. POWERS AND PHYLLIS
Smith Fisher Maas Howard & Lloyd,                         J. POWERS
P.C.                                                      Michelle A. Spahr
Indianapolis, Indiana                                     Richard A. Norris
                                                          Cynthia E. Lasher
                                                          Norris Choplin Schroeder LLP
                                                          Indianapolis, Indiana

                                                          ATTORNEYS FOR APPELLEES
                                                          MELISSA FREEMAN REALTY, INC.,
                                                          REALTY GROUP-FREEMAN, LLC
                                                          d/b/a PRUDENTIAL INDIANA
                                                          REALTY GROUP, RITA WILLIAMS,
                                                          AND MELISSA FREEMAN

                                                          Robert T. Thopy
                                                          Eric M. Glasco
                                                          McNeely Stephenson
                                                          Shelbyville, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Property-Owners Insurance                                 July 22, 2015
Company,                                                  Court of Appeals Case No.
                                                          73A05-1501-PL-2
Appellant-Plaintiff,
                                                          Appeal from the Shelby Circuit
        v.                                                Court

                                                          The Honorable Charles D.
                                                          O’Connor, Judge


Court of Appeals of Indiana | Memorandum Decision 73A05-1501-PL-2 | July 22, 2015          Page 1 of 12
      Gerald T. Powers and Phyllis J.
                                                                Case. No. 73C01-1405-PL-14
      Powers, et. al.,
      Appellees-Defendants




      Crone, Judge.


                                              Case Summary
[1]   Gerald T. Powers sustained injuries while being shown a residential property

      listed for sale by Prudential Indiana Realty Group (“Prudential”). Gerald and

      his wife, Phyllis J. Powers (collectively “the Powerses”), sued numerous

      defendants, including Prudential, for negligence. Thereafter, Prudential’s

      liability insurer, Property-Owners Insurance Company (“Property-Owners”),

      filed a declaratory judgment action alleging that, pursuant to a specific

      endorsement to the insurance policy provided to Prudential, there is no

      insurance coverage for defense or indemnity under the circumstances and that




      Court of Appeals of Indiana | Memorandum Decision 73A05-1501-PL-2 | July 22, 2015      Page 2 of 12
      the Powerses have no right to recover from Property-Owners. 1 Subsequently,

      the Powerses, as well as other defendants, filed motions for judgment on the

      pleadings asserting that the policy endorsement relied upon by Property-

      Owners to deny coverage is inapplicable to the premises upon which Gerald

      was injured. The trial court issued its order granting the motions for judgment

      on the pleadings, concluding that the policy endorsement relied upon by

      Property-Owners is inapplicable to deny coverage. Property-Owners appeals

      that ruling. We reverse and remand.


                                   Facts and Procedural History
[2]   On or about September 5, 2011, Gerald sustained bodily injuries while being

      shown a house for sale on Blanchard Street in Shelbyville (“Blanchard Street

      Property”). The Powerses filed an amended complaint for negligence against

      numerous defendants, including Prudential, the real estate listing agent for the




      1
       In addition to naming the Powerses as defendants in the declaratory judgment action, Property-Owners
      named: U.S. Bank National Association, as Trustee Under the Securitization Servicing Agreement dated as
      of July 1, 2005 Structured Asset Securities Corporation, Structured Asset Investment Loan Trust Mortgage
      Pass-Through Certificates, Series 2005-HE2; Melissa Freeman Realty, Inc.; Realty Group-Freeman, LLC
      d/b/a Prudential Indiana Realty Group; Altisource Solutions, Inc.; Altisource Fulfillment Operations, Inc.;
      Altisource; RealHome Services and Solutions, Inc., d/b/a Altisource Homes; Altisource Portfolio Solutions
      S.A.; Altisource Portfolio Solutions, Inc.; Altisource U.S. Holdings, Inc.; Altisource Holdings, LLC; Real
      Estate Servicing Solutions, LLC; Real Estate Servicing Solutions, Inc.; Altisource Portfolio Solutions
      S.A.R.L.; Ocwen Loan Servicing, LLC; Ocwen Financial Corporation; Rita Williams; Melissa Freeman;
      David Craig; Usher & Associates, Inc.; and Field Connections, LLC. The trial court refers to the additional
      defendants collectively in separate groups, namely the “U.S. Bank Defendants” and the “Prudential
      Defendants,” and we will do so as well where necessary. Although the Powerses and some of whom the trial
      court referred to as the Prudential Defendants are the only defendants who have appeared and filed briefs on
      appeal, all of the named defendants remain parties to this appeal pursuant to Indiana Appellate Rule 17(A).
      See Barnette v. U.S. Architects, LLP, 15 N.E.3d 1, 8 (Ind. Ct. App. 2014) (noting that Appellate Rule 17(A)
      operates on its own force to make all parties in the trial court parties on appeal whether such parties
      participate actively or not).

      Court of Appeals of Indiana | Memorandum Decision 73A05-1501-PL-2 | July 22, 2015               Page 3 of 12
      Blanchard Street Property, alleging that the defendants were negligent in failing

      to maintain safe premises, in constructing and/or maintaining a dangerous or

      defective staircase, and in failing to warn of the dangerous condition of the

      staircase on the Blanchard Street Property. Thereafter, Property-Owners,

      Prudential’s liability insurer, filed a complaint for declaratory judgment alleging

      that it has no duty to provide insurance coverage, defend, or indemnify the

      Prudential Defendants for any claims brought by the Powerses. Property-

      Owners attached the insurance policy issued to Prudential by Property-Owners

      and Prudential’s listing contract for the Blanchard Street Property to its

      complaint for declaratory judgment.


[3]   The “Businessowners Insurance Policy” issued to Prudential by Property-

      Owners (the “Businessowners Policy”) includes Endorsement 54638, titled

      “Limitation of Real Estate Operations,” which provides:

              It is agreed that with respect to any real estate operation, the insurance
              provided under the Businessowners Liability Coverage Form applies
              only to “bodily injury”, “property damage”, “personal injury”, and
              “advertising injury” arising out of:
              1. that part of a premises used by you for general office purposes; and
              2. a premises:
                       a. which you do not own, operate, rent or manage;
                       b. which is not in your care, custody or control; or
                       c. for which you do not act as an agent for rent collection
                       or in a supervisory capacity;
                       if such premises is listed with you for sale or rental.
              All other terms and conditions of the policy apply.



      Court of Appeals of Indiana | Memorandum Decision 73A05-1501-PL-2 | July 22, 2015   Page 4 of 12
      Appellant’s App. at 162. Property-Owners alleged that on February 1, 2011,

      Rita Williams, a real estate agent and broker-salesperson for Prudential, signed

      a listing contract for the Blanchard Street Property that included the following

      language:

              3. Broker agrees to assume the care, custody and management of the
              property, including but not limited to performing the following:
                       A. Input listing in appropriate MLS;
                       B. Install signage;
                       C. Answer calls/emails from buyers/agents;
                       D. Conduct open houses when necessary;
                       E. To inspect the property at least once each week and take
                       reasonable and prudent action to prevent any damage to the
                       property including, but not limited to, damage caused by
                       fire, vandalism, and weather conditions, and notify Seller
                       immediately by telephone in the event of any emergency, code
                       violation or damage related to the property; and ….


      Id. at 169-170. Property-Owners alleged that Prudential required all listings

      brought in by its broker-salespersons to be the property of Prudential, that all

      such listings be listed in Prudential’s name, and that, pursuant to the listing

      contract, Prudential assumed the care, custody, or control of the Blanchard

      Street Property. Accordingly, Property-Owners sought judgment declaring that

      no insurance coverage, defense, or indemnity is afforded to Prudential pursuant

      to the Businessowners Policy and, specifically, Endorsement 54638.


[4]   The Powerses filed a motion for judgment on the pleadings asserting that

      Endorsement 54638 is inapplicable to the Blanchard Street Property where

      Gerald was injured, and thus cannot be a basis to deny coverage under the
      Court of Appeals of Indiana | Memorandum Decision 73A05-1501-PL-2 | July 22, 2015   Page 5 of 12
      Businessowners Policy. Specifically, the Powerses argued that, based upon the

      declarations pages of the Businessowners Policy, Endorsement 54638 applies

      only to Prudential’s business office because that “building” is listed on the

      declarations pages as the only “building” and “location” to which Endorsement

      54638 applies. Id. at 92. The Prudential Defendants joined in that motion.

      The U.S. Bank Defendants also filed a motion for judgment on the pleadings

      asserting that Endorsement 54638 is inapplicable to deny coverage. Following

      separate hearings, the trial court granted the motions and entered judgment on

      the pleadings against Property-Owners. Property-Owners now appeals.


                                        Discussion and Decision
[5]   Property-Owners appeals the trial court’s entry of judgment on the pleadings on

      its complaint for declaratory judgment. 2 We apply a de novo standard of

      review to a trial court’s ruling on an Indiana Trial Rule 12(C) motion for

      judgment on the pleadings. Consol. Ins. Co. v. Nat’l Water Serv., LLC, 994 N.E.2d

      1192, 1196 (Ind. Ct. App. 2013), trans. denied. “We accept as true the well-

      pleaded facts alleged in the complaint, and base our ruling solely on the

      pleadings.” Id. A motion for judgment on the pleadings should not be granted

      unless it is clear from the face of the complaint that under no circumstances

      could relief be granted. Id. To the extent that interpretation of a contract is




      2
        If an insurer has made an independent determination that it has no duty to defend, it must protect its
      interest by either filing a declaratory judgment action for a judicial determination of its obligations or hiring
      independent counsel to defend its insured under a reservation of rights. Freidline v. Shelby Ins. Co., 774 N.E.2d
      37, 42 n.6 (Ind. 2002).

      Court of Appeals of Indiana | Memorandum Decision 73A05-1501-PL-2 | July 22, 2015                   Page 6 of 12
      involved, “we may look to both the complaint and the attached contract for

      purposes of determining the appropriateness of the court’s ruling on the motion

      for judgment on the pleadings.” Eskew v. Cornett, 744 N.E.2d 954, 957 (Ind. Ct.

      App. 2001) (noting that Ind. Trial Rule 9.2(A) requires a written document

      upon which the action is premised to be attached to the complaint), trans.

      denied. When allegations of a pleading are inconsistent with terms of a written

      contract attached as an exhibit, the terms of the contract must prevail over a

      contrary allegation. Id.


[6]   Insurance contracts are governed by the same rules of construction as other

      contracts, and their interpretation is a question of law which we address de

      novo. Justice v. Am. Family Mut. Ins. Co., 4 N.E.3d 1171, 1175 (Ind. 2014). Our

      goal when interpreting an insurance policy is to ascertain and enforce the

      parties’ intent as manifested in the insurance contract. Erie Ins. Exch. v. Sams, 20

      N.E.3d 182, 187 (Ind. Ct. App. 2014), trans. denied (2015). When interpreting

      an endorsement to an insurance policy, “the endorsement ‘must be read

      together, construed, and reconciled with the policy to give effect to the whole.’”

      Matsen v. AMCO Ins. Co., 953 N.E.2d 566, 569 (Ind. Ct. App. 2011) (quoting

      Stevenson v. Hamilton Mut. Ins. Co., 672 N.E.2d 467, 473 (Ind. Ct. App. 1996),

      trans. denied (1997)), trans. denied (2012). “We construe the policy and relevant

      endorsements from the perspective of an ordinary policy holder of average

      intelligence, and if reasonably intelligent people may interpret the policy’s

      language differently, the policy is ambiguous.” Id. (citation and quotation

      marks omitted). “However, an ambiguity does not exist merely because the

      Court of Appeals of Indiana | Memorandum Decision 73A05-1501-PL-2 | July 22, 2015   Page 7 of 12
      parties proffer differing interpretations of the policy language.” Buckeye State

      Mut. Ins. Co. v. Carfield, 914 N.E.2d 315, 318 (Ind. Ct. App. 2009), trans. denied

      (2010).


[7]   If no ambiguity exists, the language of the contract is given its plain and

      ordinary meaning. Bradshaw v. Chandler, 916 N.E.2d 163, 166 (Ind. 2009). “An

      insurance policy that is unambiguous must be enforced according to its terms,

      even those terms that limit an insurer’s liability.” Haag v. Castro, 959 N.E.2d

      819, 824 (Ind. 2012) (citation and quotation marks omitted).


[8]   We begin our review of the insurance contract here by ascertaining the purpose

      and intent of the Businessowners Policy, and specifically Endorsement 54638.

      In purchasing the Businessowners Policy, Prudential sought and received

      general liability coverage for its real estate sales business located at “703 N.

      Harrison Street” in Shelbyville (“Harrison Street Business Office”).

      Endorsement 54638 then provides additional liability coverage for the

      operations of the real estate business not otherwise provided by the

      Businessowners Policy. Indeed, contrary to the Prudential Defendants’

      assertion, Endorsement 54638 is an extension of coverage and not an exclusion.

      Endorsement 54638 provides additional coverage, although subject to some

      limitations, for bodily injury, property damage, personal injury, and advertising

      injury “arising out of” “that part of a premises used by [Prudential] for general

      office purposes” and “premises listed with [Prudential] for sale or rental.”

      Appellant’s App. at 162. In short, the purpose and intent of Endorsement

      54638, in part, is for certain coverages to follow the real estate operation outside

      Court of Appeals of Indiana | Memorandum Decision 73A05-1501-PL-2 | July 22, 2015   Page 8 of 12
       of its already-covered Harrison Street Business Office, to premises listed by

       Prudential for sale or rental.


[9]    In moving for judgment on the pleadings, the Powerses and the Prudential

       Defendants argued that, based upon the declarations pages of the

       Businessowners Policy, Endorsement 54638 was limited in its application to

       the Harrison Street Business Office, and therefore could not be relied upon to

       deny coverage for personal injuries sustained at the Blanchard Street Property.

       The declarations pages of the Businessowners Policy contain a summary of the

       list of coverage limits as well as a list of applicable forms. The forms are listed

       in categories titled “Forms that Apply to All Locations,” “Additional Forms for

       This Location,” and “Additional Forms for this Building.” Id. at 91-92.

       Endorsement 54638 is listed only under the “Additional Forms for This

       Building” category. The only “building” or “location” referenced on the

       declarations pages is the address of the Harrison Street Business Office. Thus,

       the Powerses and the Prudential Defendants claim that Endorsement 54638 is

       inapplicable to the Blanchard Street Property “location” where Gerald was

       injured.


[10]   The Powerses and the Prudential Defendants assert that if Property-Owners

       wished for Endorsement 54638 to apply to a “building” or “location” other

       than the Harrison Street Business Office, such as the Blanchard Street Property,

       Property-Owners should have included Endorsement 54638 in the list of forms

       that apply to “All Locations.” This argument wholly misses the mark. First,

       whether a form applies to “All Locations,” “This Location,” or “This Building”

       Court of Appeals of Indiana | Memorandum Decision 73A05-1501-PL-2 | July 22, 2015   Page 9 of 12
       is irrelevant in this case because there is only one “location” and only one

       “building” referenced in this insurance policy: the Harrison Street Business

       Office. 3


[11]   The category under which Property-Owners has placed Endorsement 54638 on

       the declarations pages is of no consequence here. In arguing that Endorsement

       54638 is inapplicable to the Blanchard Street Property, the Powerses and the

       Prudential Defendants appear to equate the term “location” used on the

       declarations pages with the term “premises” used in Endorsement 54638. A

       careful reading of the Businessowners Policy indicates that the terms “location”

       and “premises” mean very different things in these contexts. As already stated,

       there is only one “location” insured by this insurance policy, and that location

       is the Harrison Street Business Office. Endorsement 54638 extends additional

       coverage to certain “premises,” including “premises listed with [Prudential] for

       sale or rental.” Id. at 162. Accordingly, Endorsement 54638 is not limited in its

       application to the Harrison Street Business Office. We reject the suggestion

       that we should read the unambiguous term “location” as used on the

       declarations pages in a vacuum and without reference to the language used in

       Endorsement 54638. It is well settled that insurance policy provisions,

       including endorsements, must be read together, construed, and reconciled with

       the policy to give effect to the whole. Matsen, 953 N.E.2d at 569.




       3
        Presumably, if Prudential had multiple business offices and/or buildings, the declarations pages would have
       had multiple addresses listed as “locations.”

       Court of Appeals of Indiana | Memorandum Decision 73A05-1501-PL-2 | July 22, 2015             Page 10 of 12
[12]   If we were to read the Businessowners Policy as the Powerses and the

       Prudential Defendants suggest, Endorsement 54638 would be a meaningless

       provision as it would provide no coverage at all for injuries arising out of

       premises listed by Prudential for sale or rental. It is axiomatic that if a

       provision is inapplicable to a premises to deny coverage as argued by the

       Powerses and the Prudential Defendants, it would also be inapplicable to

       provide coverage, meaning that Endorsement 54638 would be an illusory

       endorsement. Clearly, a policy endorsement drafted for real estate operations

       and meant specifically to cover premises listed for sale or rental would not be

       limited in its application to the realty business office. That would render the

       endorsement’s coverage meaningless and without effect. Our charge is to

       construe the language of a contract so as not to render any words, phrases, or

       terms ineffective or meaningless. Thomson Inc. v. Ins. Co. of N. Am., 11 N.E.3d

       982, 994 (Ind. Ct. App. 2014), trans. denied (2015).


[13]   By its unambiguous terms, the insurance coverage provided by Endorsement

       54638 is not limited to the Harrison Street Business Office. Thus, accepting as

       true the well-pleaded facts alleged in Property-Owners’ complaint for

       declaratory judgment, we cannot say that it is clear from the face of the

       complaint that under no circumstances could relief be granted. Accordingly,

       judgment on the pleadings against Property-Owners is not warranted. We




       Court of Appeals of Indiana | Memorandum Decision 73A05-1501-PL-2 | July 22, 2015   Page 11 of 12
       reverse the trial court’s entry of judgment on the pleadings and remand for

       further proceedings consistent with this opinion. 4


[14]   Reversed and remanded.


       Brown, J., and Pyle, J., concur.




       4
         We conclude only that the coverage provided by Endorsement 54638 is not limited to the Harrison Street
       Business Office and that Endorsement 54638 applies and provides coverage, subject to some limitations, to
       premises listed by Prudential for sale or rental. We need not and do not reach the question of whether
       Endorsement 54638 extends liability coverage for the injuries sustained on the Blanchard Street Property
       under the circumstances presented in this case. We also note that in its complaint for declaratory judgment,
       in addition to Endorsement 54638, Property-Owners identified additional bases that it claimed could support
       the denial of coverage. We make no conclusions regarding those additional bases.

       Court of Appeals of Indiana | Memorandum Decision 73A05-1501-PL-2 | July 22, 2015              Page 12 of 12
