MEMORANDUM DECISION ON
REHEARING

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             FILED
regarded as precedent or cited before any                    Aug 17 2017, 9:13 am
court except for the purpose of establishing                      CLERK
the defense of res judicata, collateral                       Indiana Supreme Court
                                                                 Court of Appeals
estoppel, or the law of the case.                                  and Tax Court




ATTORNEY FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
John W. Mervilde                                         SECURA INSURANCE
Rick D. Meils                                            Kyle A. Lansberry
Neil A. Davis                                            Michael R. Giordano
Meils Thompson Dietz & Berish                            Lewis Wagner, LLP
Indianapolis, Indiana                                    Indianapolis, Indiana

ATTORNEY FOR AMICI CURIAE                                ATTORNEY FOR APPELLEE
                                                         DAVENPORT MASONRY
Bryce H. Bennett, Jr.
Elizabeth C. Green                                       Mark D. Gerth
Riley Bennett Egloff LLP                                 Nicholas W. Levi
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Wilhelm Construction, Inc. and                           August 17, 2017
J.C. Ripberger Construction                              Court of Appeals Case No.
Corporation,                                             49A02-1604-CT-811
Appellants/Defendants/Third-Party                        Appeal from the Marion Superior
                                                         Court
Plaintiffs,                                              The Honorable David J. Dreyer,
                                                         Judge
        v.
                                                         Trial Court Cause No.
                                                         49D10-1212-CT-46372



Court of Appeals of Indiana | Memorandum Decision on Rehearing 49A02-1604-CT-811 | August 17, 2017| Page
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      Secura Insurance, a Mutual
      Company and Davenport
      Masonry, Inc.,
      Appellees/Third-Party Defendants.




      Bradford, Judge.


[1]   On May 24, 2017, in an unpublished memorandum decision, we affirmed the

      trial court’s decision in favor of Appellees/Third Party Defendants Secura

      Insurance, a Mutual Company and Davenport Masonry, Inc.


[2]   Appellants/Defendants/Third-Party Plaintiffs Wilhelm Construction, Inc. and

      J.C. Ripberger Construction Corp. (“Appellants”) now petition for rehearing.

      In petitioning for rehearing, Appellants raise the following three claims: (1)

      “Did the Court’s conclusion that vicarious liability via a non-delegable duty

      constitutes ‘sole negligence’ under the Anti-Indemnity Statute significantly

      depart from decades of Indiana precedent,” (2) “Is the Davenport Contract’s

      requirement that Davenport provide insurance to Wilhelm and Ripberger

      distinct from whether Davenport owed indemnity, such that the Court should

      have addressed the agreement to insure even in light of its decision on

      indemnity,” and (3) “Is the Court’s characterization of the trial court’s order as

      having found that Wilhelm and/or Ripberger breached a duty to underlying

      plaintiff Mark Rhone consistent with the trial court’s order[.]” Appellants’
      Court of Appeals of Indiana | Memorandum Decision on Rehearing 49A02-1604-CT-811 | August 17, 2017| Page
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      Petition for Rehearing, p. 4. Because we find that the first and third claims

      levied by the Appellants simply reiterate arguments that were disposed of in our

      original memorandum decision, we do not deem it necessary to discuss them

      further and hereby deny Appellants’ request for rehearing on these issues.


[3]   As for the second claim, Appellants argue on rehearing that this court failed to

      rule on the question of whether the Appellants qualified as “Additional

      Insureds” under the Secura Policy. Because our Memorandum Decision

      handed down on May 24, 2017, did not include a conclusion on this issue, we

      grant rehearing for the limited purpose of explicitly stating that we affirm the

      trial court’s determinations that (1) Wilhelm did not qualify as an additional

      insured under the additional insured provision of the Secura Policy and (2)

      Secura does not owe a defense and indemnity to Ripberger because Ripberger

      failed to satisfy the conditions precedent to coverage as set forth in the Secura

      Policy.


      Najam, J, and Bailey, J., concur.




      Court of Appeals of Indiana | Memorandum Decision on Rehearing 49A02-1604-CT-811 | August 17, 2017| Page
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