MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                         May 24 2017, 8:32 am
court except for the purpose of establishing
the defense of res judicata, collateral                                CLERK
                                                                   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                                            Lewis S. Wooton
Meils Thompson Dietz & Berish                            Michael R. Giordano
Indianapolis, Indiana                                    Lewis Wagner, LLP
                                                         Indianapolis, Indiana
                                                         ATTORNEY FOR APPELLEE
                                                         DAVENPORT MASONRY
                                                         Mark D. Gerth
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Wilhelm Construction, Inc. and                           May 24, 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
Secura Insurance, a Mutual
Company and Davenport
Masonry, Inc.,


Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017         Page 1 of 29
      Appellees/Third-Party Defendants.




      Bradford, Judge.



                                          Case Summary
[1]   In June of 2012, Mark Rhone was injured while completing certain masonry

      work in connection to a construction project on the University of Indianapolis’s

      campus. Rhone initially filed suit against the construction project’s general

      contractor. In this suit, Rhone sought damages for the injuries he suffered

      while working on the construction project. Rhone subsequently amended his

      complaint to include the construction project’s subcontractor which had been

      responsible for the completion of certain concrete and masonry work. This

      subcontractor had subsequently entered into a sub-subcontract with Rhone’s

      employer for the completion of certain masonry work.


[2]   In filing suit against the general contractor and the subcontractor, Rhone

      argued that both had breached their nondelegable duty to provide all

      individuals working on the construction project with a safe work environment.

      The general contractor and the subcontractor sought indemnification from the

      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017   Page 2 of 29
      sub-subcontractor, i.e., Rhone’s employer, and the sub-subcontractor’s

      insurance carrier. All parties eventually sought summary judgment. The trial

      court conducted a hearing on the parties’ competing summary judgment

      motions, after which it found that (1) the general contractor and the

      subcontractor had assumed a nondelegable duty to provide Rhone with a safe

      work environment; (2) there had been a breach of this duty, resulting in injury

      to Rhone; and (3) the general contractor and the subcontractor were not entitled

      to indemnification by the sub-subcontractor or the sub-subcontractor’s

      insurance carrier because the indemnification provision at issue violated

      Indiana’s Anti-Indemnity Statute and, as such, was void.


[3]   On appeal, the general contractor and the subcontractor do not dispute the

      breach of duty, instead arguing that the trial court erred in determining that (1)

      the indemnification provision at issue was void and (2) they were not entitled to

      indemnification by the sub-subcontractor or the sub-subcontractor’s insurance

      carrier. Our review of the facts and circumstances of this particular case

      considered with the relevant statutory authority and case law leads us to the

      conclusion that the trial court properly found that the indemnification provision

      at issue violated Indiana’s Anti-Indemnity Statute. As such, we affirm the

      judgment of the trial court.



                            Facts and Procedural History



      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017   Page 3 of 29
                                            A. The Project
[4]   In September of 2011, the University of Indianapolis hired

      Appellant/Defendant/Third-Party Plaintiff Wilhelm Construction, Inc.

      (“Wilhelm”) to serve as the construction manager for the construction of

      Roberts Hall, a dormitory (“the Project”). Wilhelm subcontracted the concrete

      and masonry work to Appellant/Defendant/Third-Party Plaintiff J.C.

      Ripberger Construction Corp. (“Ripberger”). Ripberger then subcontracted

      certain masonry work to Appellee/Third-Party Defendant Davenport Masonry,

      Inc. (“Davenport”), whose liability carrier is Appellee/Third-Party Defendant

      Secura Insurance, a Mutual Company (“Secura”).


                                   B. The Relevant Contracts
[5]   Four separate contracts govern the parties’ relationships: the contract between

      the University of Indianapolis and Wilhelm (“the Prime Contract”), the

      subcontract between Wilhelm and Ripberger (“the Wilhelm-Ripberger

      Contract”), the sub-subcontract between Ripberger and Davenport (“the

      Ripberger-Davenport Contract”), and the insurance policy issued to Davenport

      by Secura (“the Secura Policy”).




      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017   Page 4 of 29
                                             1. The Prime Contract

[6]   On September 12, 2011, Wilhelm entered into a contract with the University of

      Indianapolis which provided that Wilhelm would serve as the construction

      manager for the Project.1


                                    2. The Wilhelm-Ripberger Contract

[7]   After securing the Prime Contract, Wilhelm contracted with Ripberger to

      complete concrete and masonry work on the Project. The Wilhelm-Ripberger

      Contract contained the following language with regard to jobsite safety,

      insurance, and indemnification:

               9. Subcontractor shall take the proper precautions in the
               performance of its Work to protect all persons and property from
               being injured by the Work or by the condition of the site, shall
               comply with any safety measures initiated by Contractor or set
               forth in the Subcontract Documents, and shall comply with
               OSHA and any other applicable Federal, State or local safety
               laws, rules, orders or regulations.
                                               ****
               14. Prior to the start of its Work, Subcontractor shall procure
               and maintain in force, for at least the duration of its Work,
               insurance as is called for by the attached Project Insurance
               Requirements, plus any additional insurance that is required of
               Contractor under the Prime Contract. Contractor, Owner, Prime
               Contractor, Construction Manager and Architect shall be named
               as additional insured on each of the required policies, except for
               worker’s compensation. Subcontractor shall furnish insurance



      1
        None of the provisions in the Prime Contract are at issue in the instant appeal. As such, for the sake of
      brevity and clarity for the reader, none of the specific provisions of this contract are included in this
      memorandum decision.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017                 Page 5 of 29
        certificates to Contractor verifying the required insurance prior to
        beginning its Work, but no later than ten (10) days from the date
        of this Subcontract Agreement. If any of the foregoing insurance
        coverages are required to remain in force after final payment, an
        additional certificate evidencing continuation of such coverage
        shall be submitted with Subcontractor’s final application for
        payment. This insurance coverage provided by Subcontractor
        shall be primary and non-contributory to any other insurance.
                                          ****
        17. To the fullest extent permitted by law, Subcontractor shall
        indemnify, hold harmless, and defend at its own expenses
        Contractor, Owner, Prime Contractor, Construction Manager,
        Architect, and their respective agents, employees and assigns
        (herein collectively referred to as “Indemnitees”) from and
        against any claims, causes of action, damages, losses and
        expenses (including litigation costs and attorney’s fees) of any
        nature whatsoever, including but not limited to claims for or
        relating to injury, sickness or disease to any persons (including
        death), damages to property (including the lost use thereof and
        consequential damages therefrom), economic loss, liens or
        Project delays, which arise out of or are alleged to arise out of a)
        the performance of Subcontractor’s Work; b) the Subcontractor’s
        breach of this Subcontract Agreement; and/or c) any act or
        omission of Subcontractor, its subcontractors or material
        supplies, any directly or indirectly employed by them or anyone
        for whose acts they may be liable; regardless of whether or not
        such claim, cause of action, damage, loss or expense is
        contributed to or caused by the negligence, breach of contract or
        warranty, strict liability, or any other breach of duty to any
        Indemnitee; provided, however, that subcontractor shall not be
        obligated to indemnify an Indemnitee for its sole negligence or
        willful misconduct where such indemnification ins contrary to
        law, but otherwise it is the intent of the parties that Subcontractor
        shall indemnify the Indemnitees to the fullest extent permitted by
        law.



Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017   Page 6 of 29
      Appellants’ App. Vol. IV, p. 103.


[8]   The Wilhelm-Ripberger Contract provided that Ripberger would obtain

      specified minimum levels of insurance for the Project. It also required that

      “The following shall be named as Additional Insured(s) on Subcontractor’s

      [insurance] policies: F.A. Wilhelm Construction Co., Inc. AND Wilhelm

      Construction, Inc. and their respective affiliates, subsidiaries, officers, directors,

      employees and representatives AND University of Indianapolis.” Appellants’

      App. Vol. IV, p. 105 (bold in original). The Wilhelm-Ripberger Contract

      further provided that “[t]he insurance coverage provided by Subcontractor

      under this Subcontract Agreement shall be primary and non-contributory to any

      other insurance.” Appellants’ App. Vol. IV, p. 106.


                                 3. The Ripberger-Davenport Contract

[9]   At some point, Ripberger entered into a contract with Davenport for the

      completion of certain masonry work on the Project. The Ripberger-Davenport

      Contract provided that Ripberger had entered into a contract with the

      University of Indianapolis to provide all concrete and masonry work on the

      Project, referring to Ripberger’s agreement with the University of Indianapolis

      as the “General Contract.”2 Appellants’ App. Vol. IV, p. 107.




      2
        We note that Ripberger did not actually enter into an agreement with the University of Indianapolis.
      Rather, Ripberger entered into an agreement with Wilhelm, who had entered into a contract with the
      University of Indianapolis for completion of the Project. It is unclear from the record before the court on
      appeal whether Ripberger intended the phrase “General Contract” to refer to the Prime Contract entered into

      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017             Page 7 of 29
[10]   In relation to insurance and indemnity, the Ripberger-Davenport Contract

       provided as follows:


               12. INSURANCE               (a) the Subcontractor shall purchase
               and maintain throughout its performance of this contract the
               minimum insurance coverages and limits as set forth below,[ 3]
               unless otherwise stated in the General Contract. All required
               insurance shall be procured from insurance companies
               authorized to do business in the State of Indiana and having
               A.M. Best Rating of A- (or better) or S&P AA- (or better). Prior
               to commencing performance under this contract, the
               Subcontractor shall furnish to Contractor a Certificate or
               Certificates as issued by the insurer(s) evidencing that the
               required coverages and limits are in effect and that the policies
               may not be cancelled or lapse without thirty (30) days prior
               written notice to the Contractor. J.C. Ripberger Construction
               Corp. shall be added as an additional insured to the
               Subcontractor’s general liability, auto and umbrella policies, and
               the coverage’s [sic] granted by the additional insured provision of
               these polices will be primary and on a noncontributory basis.
               Subcontractor shall furnish Contractor complete and certified
               copies of all required polices if so requested by Contractor.
                                                ****
               13. INDEMNIFICATION To the fullest extent permitted
               by law, Subcontractor hereby agrees to indemnify, save and hold
               harmless, and defend at its own expense Contractor, its officers,
               employees, agents and servants, the Owner, and the Architect or
               Engineer, and any other person or entity for whom any of them




       between Wilhelm and the University or Indianapolis or the Wilhelm-Ripberger Contract entered into
       between Wilhelm and Ripberger.
       3
         The Ripberger-Davenport Contract provides the specific types of insurance which much be provided by
       Davenport, but does not clearly outline the minimum amount of each type of coverage that is required. The
       specifics relating to the coverage requirements contained within the Ripberger-Davenport Contract are not
       material to the resolution of this appeal and, as such, are not quoted herein.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017            Page 8 of 29
        may be legally responsible (herein collectively called
        “Indemnitees”) from and against all claims, loses, damages,
        suits, costs and expenses, including but not limited to attorneys’
        fees and costs of litigation, arbitration and mediation or actions
        of any nature whatsoever, which arise out of or result from, or
        [are] alleged to arise out of or result from, the work to be
        performed by the Subcontractor, including without limiting the
        generality of the foregoing all liability for claims for debt or
        damage to any property, including the loss of use thereof and
        consequential damages therefrom, economic loss, damage or
        injury to any Indemnitee, whether such claim or damage is based
        upon, or alleged to be based upon statutory, contractual, tort or
        other liability of any Indemnitee and even though cause, or
        alleged to be caused by the joint, several and comparative
        negligence, breach of contract, breach of warranty, strict liability,
        or other breach of duty by any Indemnitee. It is the intent of this
        Subcontract that Subcontractor defend, indemnify and hold
        harmless Indemnitees and any such other persons or entities as
        the contract documents may require even if it is alleged that
        Indemnitees, or such other persons or entities, individually or
        collectively contributed to the alleged wrongdoing, were
        individually or collectively, actively or passively negligent or
        individually or collectively liable because of a non-delegable
        duty. Subcontractor is not obligated to defend, indemnify or
        hold harmless Indemnitees, or such other persons, for their sole
        negligence or willful misconduct if such indemnification is
        contrary to law.

        Also, the Subcontractor shall defend, indemnify, and hold the
        Owner and its officers, agents, and employees harmless from all
        claims, demands, and causes of action brought against them or
        any of them as a result of Subcontractor’s non-compliance with
        any non-discrimination requirements imposed by Indiana Code
        §§ 22-9-1-10, 36-1-12-15, and 5-16-6-1 (or any successor or
        claimed statutory obligations).

        If any part of this provision is adjudged to be contrary to law, the

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017   Page 9 of 29
               remaining part of the provision shall in all other respects be and
               remain legally effective and binding. Moreover, this provision
               shall not be construed to eliminate or in any way reduce any
               other indemnifications or rights which the Contractor,
               Construction Manager, Owner, Architect or Engineer has by
               law.


       Appellants’ App. Vol. IV, pp. 110-11.


                                            4. The Secura Policy

[11]   Relevant portions of the Secura Policy provide as follows:


               SECTION I – COVERAGES

               COVERAGE A BODILY INJURY AND PROPERTY
               DAMAGE LIABILITY

               1. Insuring Agreement

               a. We will pay those sums that the Insured becomes legally
               obligated to pay as damages because of “bodily injury” or
               “property damage” to which this insurance applies. We will
               have the right and duty to defend the Insured against any “suit”
               seeking those damages. However, we will have no duty to
               defend the Insured against any “suit” seeking damages for
               “bodily injury” or “property damage” to which this insurance
               does not apply. We may, at our discretion, investigate any
               “occurrence” and settle any claim or “suit” that may result.…

               b. This insurance applies to “bodily injury” and “property
               damage” only if:
                     (1) The “bodily injury” or “property damage” is
                     caused by an “occurrence” that takes place in the
                     “coverage territory”;


       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017   Page 10 of 29
               (2) The “bodily injury” or “property damage” occurs
               during the policy period; and
               (3) Prior to the policy period, no Insured … and no
               “employee” authorized by [the Insured] to give or
               receive notice of an “occurrence” or claim, knew that
               the “bodily injury” or “property damage” had
               occurred, in whole or in part.…
        d. “Bodily injury” or “property damage” will be deemed to have
        been known to have occurred at the earliest time when any
        Insured … or any “employee” authorized by [the Insured] to give
        or receive notice of an “occurrence” or claim:
               (1) Reports all, or any part, of the “bodily injury” or
               “property damage” to us or any other insurer;
               (2) Receives a written or verbal demand or claim for
               damages because of the “bodily injury” or “property
               damage”; or
               (3) Becomes aware by any other means that “bodily
               injury” or “property damage” has occurred or has
               begun to occur.
                                        ****
        2. Exclusions

        This insurances does not apply to:


                                               ****

        e. Employer’s Liability

        “Bodily injury” to:


                (1) An “employee” of the Insured arising out of and
                in the course of:
                       (a) Employment by the Insured; or
                       (b) Performing duties related to the
                       conduct of the Insured’s business; or


Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017   Page 11 of 29
                (2) The Spouse, child, parent, brother or sister of that
                “employee” as a consequence of Paragraph (1)
                above.

        This exclusion applies:

                (1) Whether the Insured may be liable as an
                employer or in any other capacity; and
                (2) To any obligation to share damages with or repay
                someone else who must pay damages because of the
                injury.

        This exclusion does not apply to liability as assumed by the
        Insured under an “Insured contract”.


                                ****
        SECTION II – WHO IS AN INSURED

        1. If you are designated in the Declarations as:
                                         ****
        d. An organization other than a partnership, joint venture or
        limited liability company, you are an Insured. Your “executive
        officers” and directors are Insureds, but only with respect to their
        duties as your officers or directors. Your stock-holders are also
        Insureds, but only with respect to their liability as stockholders.
                                         ****
        2. Each of the following is also an Insured:

        a. Your “volunteer workers” only while performing duties
        related to the conduct of your business, or your “employees”,
        other than either your “executive officers” … but only for acts
        within the scope of their employment by you or while performing
        duties related to the conduct of your business. However, none of
        these “employees” or “volunteer workers” are Insureds for:
               (1) “Bodily injury” or “personal and advertising
               injury”:


Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017   Page 12 of 29
                     (a) To you, to your partners or
                     members … to a co-“employee” while
                     in the course of his or her employment
                     or performing duties related to the
                     conduct of your business, or to your
                     other “volunteer workers” while
                     performing duties related to the conduct
                     of your business;
                     (b) To the spouse, child, parent, brother
                     or sister of that co-“employee” or
                     “volunteer worker” as a consequence of
                     Paragraph (1)(a) above;
                     (c) For which there is any obligation to
                     share damages with or repay someone
                     else who must pay damages because of
                     the injury described in Paragraphs (1)(a)
                     or (b) above; or
                     (d) Arising out of his or her providing
                     or failing to provide professional health
                     care services.
                                         ****
        SECTION IV – COMMERCIAL GENERAL LIABLITY
        CONDITIONS
                                         ****
        2. Duties in the event of Occurrence, Offense, Claim or Suit

        a. You must see to it that [the Insurer is] notified as soon as
        practicable of an “occurrence” or an offense which may result in
        a claim. To the extent possible, notice should include:
               (1) How, when and where the “occurrence” or
               offense took place;
               (2) The names and addresses of any injured persons
               and witnesses; and
               (3) The nature and location of any injury or damage
               arising out of the “occurrence” or offense.
        b. If a claim is made or “suit” is brought against any Insured,
        you must:
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017   Page 13 of 29
                      (1) Immediately record the specifics of the claim or
                      “suit” and the date received; and
                      (2) Notify us as soon as practicable.
               You must see to it that we receive written notice of the claim or
               “suit” as soon as practicable.
               c. You and any other involved Insured must:
                      (1) Immediately send us copies of any demands,
                      notices, summonses or legal papers received in
                      connection with the claim or “suit”;
                      (2) Authorize us to obtain records and other
                      information;
                      (3) Cooperate with us in the investigation or
                      settlement of the claim or defense against the “suit”;
                      and
                      (4) Assist us, upon our request, in the enforcement of
                      any right against any person or organization which
                      may be liable to the Insured because of injury or
                      damage to which this insurance may also apply.
               d. No Insured will, except at that Insured’s own cost, voluntarily
               make a payment, assume any obligation, or incur any expense,
               other than for first aid, without our consent.

               3. Legal Action Against Us

               No person or organization has a right under this Coverage Part:
                     a. To join us as a party or otherwise bring us into a
                     “suit” asking for damages from an Insured; or
                     b. To sue us on this Coverage Part unless all of its
                     terms have been fully complied with.


       Appellants’ App. Vol. VII, pp. 20-21, 28-30 (bold in original).


[12]   The Secura Policy defines the term “bodily injury” as follows: “Bodily injury”

       means bodily injury, sickness or disease sustained by a person, including death

       resulting from any of these at any time.” Appellants’ App. Vol. VII, p. 32. It

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017   Page 14 of 29
       defines the term “occurrence” as follows: “Occurrence” means an accident,

       including continuous or repeated exposure to substantially the same general

       harmful conditions.” Appellants’ App. Vol. VII, p. 33. The Secura Policy

       further defines the term “suit” as follows:


               “Suit” means a civil proceeding in which damages because of
               “bodily injury”, “property damage” or “personal and advertising
               injury” to which this insurance applies are alleged. “Suit”
               includes:
               a. An arbitration proceeding in which such damages are claimed
               and to which the Insured must submit or does submit with [the
               Insurer’s] consent; or
               b. Any other alternative dispute resolution proceeding in which
               such damages are claimed and to which the Insured submits with
               our consent.


       Appellants’ App. Vol. VII, p. 34.


[13]   The “Additional Insured WRAP”, an endorsement incorporated into the

       Secura Policy, provides as follows:


               A. Additional Insured When Required By Written
               Construction Contract

               1. Operations Performed for An Additional Insured

               WHO IS AN INSURED is amended to include as an additional
               insured any person or organization for whom you are performing
               operations when you and such person or organization have
               agreed in a written contract or written agreement prior to a loss,
               that such person or organization be added as an additional
               Insured on your policy. Such person or organization is an
               additional Insured only with respect to liability for “bodily

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017   Page 15 of 29
        injury”, “property damage” or “personal and advertising injury”
        caused, in whole or in part, by:
               a. Your acts or omissions or
               b. The acts or omissions of those acting on your
               behalf;

        In the performance of your ongoing operations for the additional
        Insured.

        A person’s or organization’s status as an additional Insured
        under this provision ends at the earlier of when your operations
        for that additional Insured are completed; or the end of the policy
        period.
                                        ****

        F. Additional Condition

        The following condition is added:

        Additional Insured Duty to Notify

        The additional Insured described in A … must give written
        notice of loss, including a demand for defense and indemnity, to
        any other insurer having coverage for the loss under its policies.
        Such notice must demand full coverage available and the
        additional Insured shall not waive or limit such other available
        coverage.

        This additional condition does not apply to the insurance
        available to the additional Insured which covers that person or
        organization as a named insured.


Appellants’ App. Vol. VII, pp. 67-69 (bold in original).




Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017   Page 16 of 29
                                                C. The Incident
[14]   On June 5, 2012, Mark Rhone, an employee of Davenport, and Davenport

       foreman Gary Smalley were disassembling scaffolding. Smalley was operating

       a piece of equipment known as a lull, which was used to lift the scaffolding.

       While Rhone was standing next to a section of the scaffolding, Smalley lifted

       the section of the scaffolding up with the lull. The section of the scaffolding

       toppled over onto Rhone.4 Rhone was injured when he was crushed by a

       section of the scaffolding.


                     D. Procedural History Leading to this Appeal
[15]   On December 4, 2012, Rhone and his wife (collectively, “the Rhones”) filed the

       underlying lawsuit against Wilhelm, seeking damages for the injuries Rhone

       allegedly suffered as a result of the incident. After being sued, Wilhelm

       requested defense and indemnity from Ripberger based on the indemnity

       provisions of the Wilhelm-Ripberger Contract. On July 30, 2013, Ripberger’s

       insurer, Amerisure, sent a letter to Davenport and Secura demanding that they

       defend and indemnify Ripberger and Wilhelm. Secura denied Americure’s

       demand, noting that Wilhelm is not insured under the Secura policy and that

       no lawsuit had been filed against Ripberger.5




       4
         At all times relevant to this appeal, Rhone alleged that Smalley’s negligent operation of the lull caused the
       scaffolding to topple over onto him.
       5
         On August 2, 2013, Secura filed a Motion to Intervene in the underlying suit so to protect its worker’s
       compensation lien. The trial court granted this motion on August 13, 2013.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017                Page 17 of 29
[16]   Wilhelm sought leave to file a third-party complaint against Secura and

       Davenport on December 19, 2013. The trial court subsequently granted this

       motion. Secura filed its answer to this third-party complaint on March 17,

       2014.


[17]   On May 1, 2014, the Rhones amended their complaint, adding Ripberger as a

       defendant. In this amended complaint, the Rhones alleged that the Appellants

       were liable for breaching the nondelegable duty of care that they assumed by

       contract. Counsel for Secura was not served with this amended complaint. Six

       months later, Wilhelm and Ripberger filed a third-party complaint against

       Secura. Ripberger did not request that Secura defend or indemnify it for the

       suit at any time between May 1, 2014 and November 14, 2014, when it sued

       Secura for an alleged breach of contract.


[18]   Between April and August of 2015, each party filed a motion for summary

       judgment. The Rhones sought partial summary judgment on the issues of

       whether Appellants (1) owed a nondelegable duty of job site safety and (2) were

       vicariously liable for their subcontractors. Wilhelm and Ripberger (collectively,

       “Appellants”) moved for summary judgment against Davenport and Secura

       (collectively, “Appellees”), arguing that Secura was obligated to defend and

       indemnify Appellants or, alternatively, that Davenport had breached its

       obligation to provide insurance that would provide for Appellants’ defense and

       indemnification. Appellees opposed Appellants’ motions and filed cross-

       motions for summary judgment. The trial court held a hearing on all of the

       summary judgment motions on December 3, 2015.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017   Page 18 of 29
[19]   On January 12, 2016, the trial court issued an order granting the Rhones’

       motion for partial summary judgment, finding that “as a matter of law”

       Appellants “assumed a contractual nondelegable duty for the safety of all

       employees on the subject construction project, including the employees of

       [their] subcontractors.” Appellants’ App. Vol. 8, p. 54. The trial court also

       found that “in addition to liability for their own negligence, [Appellants] are

       vicariously liable for the negligence of their subcontractors including

       DAVENPORT.” Appellants’ App. Vol. 8, p. 54. Appellants do not challenge

       these findings on appeal.


[20]   Also on January 12, 2016, the trial court issued an order denying Appellants’

       motion for summary judgment and granting Secura’s motion for summary

       judgment. On March 30, 2016, the trial court amended its order to also grant

       Davenport’s motion for summary judgment. This appeal follows.



                                 Discussion and Decision
[21]   On appeal, the Appellants contend that the trial court erred in granting the

       Appellees’ motion for summary judgment. In making this contention, the

       Appellants argue that the trial court erred in finding that, as a matter of law,

       they were not entitled to indemnification by Secura. The Appellants further

       contend that the trial court erred in denying their motion for summary

       judgment. We disagree with both contentions.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017   Page 19 of 29
                                      I. Standard of Review
[22]           Summary judgment is appropriate only where no genuine issues
               of material fact exist, and the moving party is entitled to
               judgment as a matter of law. Ind. Trial Rule 56(C); Settles v.
               Leslie, 701 N.E.2d 849, 852 (Ind. Ct. App. 1998). Genuine issues
               of material fact exist where facts concerning an issue which
               would dispose of the litigation are in dispute. Settles, 701 N.E.2d
               at 852. The moving party has the initial burden of
               demonstrating, prima facie, the absence of genuine issues of
               material fact. Id. If the moving party does so, the burden then
               falls upon the non-moving party to identify a factual dispute
               which would preclude summary judgment. Id. Upon appeal of a
               grant of summary judgment, we apply the same standard as the
               trial court, resolving any factual disputes or conflicting inferences
               in favor of the non-moving party. Id. We consider only those
               portions of the record specifically designated to the trial court.
               Id. Upon appeal, the non-moving party bears the burden of
               persuasion and must specifically point to the disputed material
               facts and the designated evidence pertaining thereto. Id. We will
               liberally construe the designated evidence in favor of the non-
               movant, so that he is not improperly denied his day in court. Id.


       Meisenhelder v. Zipp Exp., Inc., 788 N.E.2d 924, 926-27 (Ind. Ct. App. 2003).


                                               II. Analysis
                            A. Appellants’ Nondelegable Duties
[23]   The Indiana Supreme Court recently handed down an opinion in which the

       Court discussed the duties that contractors owe to subcontractors in cases

       stemming from accidents occurring on construction sites. See Ryan v. TCI

       Architects/Engineers/Contractors, Inc. et al, --- N.E.3d ---, 2017 WL 1488853 (Ind.

       April 26, 2017), the Indiana Supreme Court explained as follows:
       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017   Page 20 of 29
         As to the duty owed by a general contractor, the long-standing
         rule in Indiana is that “a principal will not be held liable for the
         negligence of an independent contractor.” Bagley v. Insight
         Commc’ns Co., L.P., 658 N.E.2d 584, 586 (Ind. 1995) (citing Prest-
         O-Lite Co. v. Skeel, 182 Ind. 593, 597, 106 N.E. 365, 367 (1914);
         also citing City of Logansport v. Dick, 70 Ind. 65, 78 (1880)).
         Therefore, a general contractor, such as TCI, will ordinarily owe
         no outright duty of care to a subcontractor’s employees, much
         less so to employees of a sub-subcontractor. This means that
         when a subcontractor fails to provide a reasonably safe
         workspace, the general contractor will not incur liability for
         employee injury, even when such injury is proximately caused by
         the subcontractor negligence. The rationale behind this rule is
         that a general contractor has little to no control over the means
         and manner a subcontractor employs to complete the work.
         Stumpf v. Hagerman Const. Corp., 863 N.E.2d 871, 876 (Ind. Ct.
         App. 2007).

         However, five exceptions to our general rule exist. One such
         exception allows for the existence of a duty of care where a
         contractual obligation imposes a “specific duty” on the general
         contractor.6 Bagley, 658 N.E.2d at 586. “If a contract
         affirmatively evinces an intent to assume a duty of care,
         actionable negligence may be predicated on the contractual
         duty.” Stumpf, 863 N.E.2d at 876. In other words, a contract
         that is found to demonstrate the general contractor’s intent to
         assume a duty of care exposes the general contractor to potential
         liability for a negligence claim where no such liability would
         have otherwise existed. A duty imposed by contract, once
         formed, is non-delegable and is thought to encourage the general




6
  The other exceptions recognized by Indiana law apply when: (1) the contract requires the performance of
intrinsically dangerous work; (2) the act will create a nuisance; (3) the act to be performed will probably cause
injury to others unless due precaution is taken; and (4) the act to be performed is illegal. Bagley, 658 N.E.2d
at 586.

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017                 Page 21 of 29
               contractor to minimize the risk of resulting injuries. Bagley, 658
               N.E.2d at 588.


       Ryan, --- N.E.3d ----, 2017 WL 1488853 *3 (footnote in original).


[24]   In the instant matter, the trial court found that, as a matter of law, Appellants

       had each assumed a nondelegable duty for the safety of all employees working

       on the Project, including the employees of their subcontractors. The trial court

       further found that given this nondelegable duty, in addition to liability for their

       own negligence, Appellants were vicariously liable for the negligence of their

       subcontractors, including Davenport. Appellants do not challenge the trial

       court’s findings that they (1) had assumed a nondelegable duty for the safety of

       all employees working on the Project or (2) were vicariously liability for the

       negligence of their subcontractors.


                            B. Indiana’s Anti-Indemnity Statute
[25]   Appellants, who assumed a non-delegable duty for the safety of their worksite,

       seek indemnification from Davenport for damages suffered by Rhone after he

       was injured when scaffolding fell on him as he was working on Appellants’

       worksite. As such, the question presented on appeal is not of duty, but rather of

       indemnification.


[26]   Again, the Ripberger-Davenport contract included a section titled

       “Indemnification.” As is stated above, the Ripberger-Davenport Contract

       expressly provides that the indemnification provision contained therein applies

       “even if it is alleged that Indemnitees … were individually or collectively,

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017   Page 22 of 29
       actively or passively negligent or individually or collectively liable because of a

       non-delegable duty.” Appellants’ App. Vol. IV, p. 111 (emphasis added). The

       trial court found that this provision was void because it violated Indiana’s Anti-

       Indemnity Statute.


[27]   Appellants challenge the trial court’s determination that the “Indemnification”

       section of the Ripberger-Davenport Contract violates Indiana’s Anti-Indemnity

       Statute and is therefore void. Indiana’s Anti-Indemnity Statute, which is

       codified at Indiana Code section 26-2-5-1, provides as follows:

                All provisions, clauses, covenants, or agreements contained in,
                collateral to, or affecting any construction or design contract
                except those pertaining to highway contracts, which purport to
                indemnify the promisee against liability for:
                       (1) death or bodily injury to persons;
                       (2) injury to property;
                       (3) design defects; or
                       (4) any other loss, damage or expense arising under
                       either (1), (2) or (3);
                from the sole negligence or willful misconduct of the promisee or
                the promisee’s agents, servants or independent contractors who
                are directly responsible to the promisee, are against public policy
                and are void and unenforceable.


       Ind. Code § 26-2-5-1.7




       7
         The vast majority of states have adopted some form of a general anti-indemnity statute relating to
       construction contracts. See Alaska Stat. § 45.45.900; Ariz. Rev. Stat. Ann. § 34-226; Cal. Civ. Code §§ 2782,
       2782.05; Colo. Rev. Stat. § 13-50.5-102; Conn. Gen. Stat. § 52-572K; Del. Code Ann. tit. 6, § 2704; Fla. Stat.
       § 725.06; Ga. Code Ann. § 13-8-2; Haw. Rev. Stat. § 431:10-222; Idaho Code § 29-114; 740 Ill. Comp. Stat.
       35/1; Md. Code Ann., Cts. & Jud. Proc. § 5-401; Mass. Gen. Laws ch. 149, § 29C; Mich. Comp. Laws

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017               Page 23 of 29
[28]   We have previously explained that the purpose of the Anti-Indemnity Statute is

       to increase safety at construction sites. See generally Fort Wayne Cablevision v.

       Ind. & Mich. Electric Co., 443 N.E.2d 863, 869-71 (Ind. Ct. App. 1983)

       (discussing the purpose and scope of the Anti-Indemnity Statute). The Seventh

       Circuit further expanded the rationale for the Anti-Indemnity Statute, stating

       the following:

               Before it was passed general contractors would negotiate with
               their subcontractors for a promise to indemnify the general
               contractor if he was sued for a personal injury to a worker
               employed by a subcontractor at the construction site. The
               legislature believed that this type of agreement resulted in more
               accidents on the job. This is possible, certainly. If the general
               contractor can shift the financial burden of liability he may have
               less incentive to take measures to make the construction site safe.
               Of course he will have to compensate the subcontractors for
               imposing a greater risk of liability on them, and thus will pay a
               price for his carelessness. But in just the same way, a person who
               becomes more careless because he has liability insurance may in
               the end have to pay for his greater carelessness in the form of a
               higher premium for insurance, yet the buffering of liability by the
               insurance company may result in some additional carelessness.
               This would not matter if tort compensation were always full
               compensation. For then the victims of this extra carelessness
               would be no worse off, while the insured and insurer (or



       §691.991; Minn. Stat. §337.02; Miss. Code Ann. §31-5-41; Mo. Rev. Stat. §434.100; Mont. Code Ann. §28-2-
       2111; Neb. Rev. Stat. §25-21, 187; N.J. Stat. Ann. § 2A:40A-1; N.M. Stat. Ann. § 56-7-1; N.Y. Gen. Oblig. §
       5-322.1; N.C. Gen. Stat. § 22B-1; Ohio Rev. Code Ann. 2305.31; Or. Rev. Stat. § 30.140; R.I. Gen. Laws § 6-
       344; S.C. Code Ann. §32-2-10; S.D. Codified Laws §56-3-18; Tenn. Code Ann. § 62-6-123; Utah Code Ann.
       § 13-8-1; Va. Code Ann. § 11-4.1; Wash. Rev. Code § 4.24.115; W. Va. Code § 55-8-14; Wis. Stat. § 895.447.
       In addition, Louisiana, North Dakota, and Texas have adopted statutes limiting indemnity in certain specific
       situations. See La. Stat. Ann. § 38:2216(G); N.D. Cent. Code § 9-08-02.1; Tex. Civ. Prac. & Rem. § 130.002.
       For instance, North Dakota and Texas limit indemnity when an injury was caused by defects in planning or
       design. See N.D. Cent. Code § 9-08-02.1; Tex. Civ. Prac. & Rem. § 130.002.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017            Page 24 of 29
               indemnitee and indemnitor—in fact liability insurance is just a
               special form of indemnity) would be better off; otherwise they
               would not have made the contract. See Shavell, On Liability and
               Insurance, 13 Bell J. Econ. 120 (1982). But tort compensation is
               not always full compensation, and when it is not the victims may
               be worse off.


       McMunn v. Hertz Equip. Rental Corp., 791 F.2d 88, 92 (7th Cir. 1986). The

       Seventh Circuit further noted that “in sum, it is possible to understand how the

       Indiana legislature might have believed that banning indemnity agreements

       might make construction workers safer” and “[t]he statute is directed at a

       particular problem, construction safety[.]” Id. at 93.


[29]   The trial court noted below that Secura only had an obligation under the Secura

       Contract to indemnify Appellants if the indemnity provision in the Ripberger-

       Davenport Contract was enforceable. However, the trial court determined that

       the indemnity provision in the Ripberger-Davenport Contract was void and

       unenforceable under Indiana’s Anti-Indemnity Statute. In making this

       determination, the trial court noted that both Wilhelm and Ripberger are

       directly responsible for Davenport and, in effect, are “asking to be indemnified

       for their sole fault and the fault of ‘independent contractors who are directly

       responsible to [them].” Appellant’s App. Vol. II, p. 20 (brackets in original).

       The trial court further stated that:


               If this Court allowed Wilhelm and Ripberger to recover
               indemnification from Davenport in this case, Wilhelm’s and
               Ripberger’s non-delegable duty would be transformed into a
               delegable duty and, as an inevitable consequence, the purpose of

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017   Page 25 of 29
                the Anti-Indemnity State would be thwarted because Wilhelm
                and Ripberger would have absolutely no incentive to make their
                construction sites safe. This result is unacceptable. Therefore,
                the indemnity provision in the Ripberger/Davenport contract is
                void and unenforceable as a matter of law.


       Appellants’ App. Vol. II, p. 20.


[30]   In arguing that the trial court erred in finding that the indemnification clause in

       the Ripberger-Davenport Contract was rendered void by Indiana’s Anti-

       Indemnity Statute, Appellants cite to this court’s prior opinion in Moore Heating

       & Plumbing, Inc. v. Huber, Hunt & Nichols, 583 N.E.2d 142 (Ind. Ct. App. 1991).8

       In Moore, the general contractor, Huber, sought indemnification from Moore

       after Dirk Peterson,9 an employee of Moore, was injured on Huber’s

       construction worksite. 583 N.E.2d at 144. The trial court granted summary

       judgment in favor of Huber. Id. On appeal, this court affirmed, stating the

       following:


                We agree that the legislature has declared one form of
                construction contract indemnity clause, in which the promisee
                seeks indemnification for its own negligence, to be void and
                unenforceable. That form is the indemnity clause which seeks to
                indemnify the promisee against liability from its sole negligence,




       8
         Appellants also cite to a number of other cases. However, we only discuss Moore because either the
       resolution of the other cases rely completely on Moore’s reasoning or are not applicable to the question of
       whether Indiana’s Anti-Indemnity Statute apply to the facts of the instant matter.
       9
         Peterson was injured when a scissor lift, upon which he was working, “tipped and fell” while being
       operated by another worker. Moore, 583 N.E.2d at 144.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017                Page 26 of 29
                that is, in a situation where the promisee and no one else has
                been negligent.


       Id. at 148. Because Peterson’s injury did not result solely from Huber’s

       negligence, this court determined that the indemnity statute in question was not

       rendered void by Indiana’s Anti-Indemnity Statute.10 Id. Importantly,

       however, unlike the instant matter, nothing in the court’s opinion in Moore

       indicates that Huber, the general contractor, had assumed a non-delegable duty

       for the safety of all employees working on the construction project.


[31]   While we acknowledge this court’s prior conclusion in Moore, we must note

       that the court’s conclusion in Moore seems to have a more narrowing effect on

       Indiana’s Anti-Indemnity Statute than what we believe was intended by the

       General Assembly. A plain reading of the Anti-Indemnity Statute reveals that

       immediately following the language which would seem to limit application of

       the statute to the sole negligence of the promisee, the General Assembly

       inserted the much broader, arguably nearly all-encompassing, language which

       extends application of the statute to not only the sole negligence of the

       promisee, but also the sole negligence of promisee’s agents, servants, and

       independent contractors who are directly responsible to the promisee. See Ind.



       10
          We must note that the court’s conclusion in Moore seems to have a more narrowing effect on the statute
       than what we believe was intended by the General Assembly. We base this opinion on the fact that
       immediately after inserting the language which would seem to limit application of the statute to the sole
       negligence of the promisee, the General Assembly inserted the much broader, arguably nearly all-
       encompassing, language which extends application of the statute to not only the sole negligence of not only
       the promisee, but also the sole negligence of promisee’s agents, servants, or independent contractors who are
       directly responsible to the promisee.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017              Page 27 of 29
       Code § 26-2-5-1. Therefore, we believe that the question of “sole negligence” is

       not merely limited to Appellants, but also includes the “sole negligence” of any

       independent contractors who are directly responsible to Appellants. Like the

       trial court, we conclude that Davenport falls into this category.


[32]   As a subcontractor working on the Project, Davenport and its employees were

       directly responsible to the Appellants, who had assumed a non-delegable duty

       to ensure the safety of all of the individuals working on the Project. Given the

       fact that Davenport was directly responsible to Appellants coupled with

       Appellants’ assumption of the non-delegable duty and the trial court’s

       unchallenged finding that Appellants are vicariously liable for the negligence of

       their subcontractors, including Davenport, we conclude that it is as if any

       negligence committed by Appellants’ subcontractors qualifies as the negligence

       of Appellants. As such, one can reasonably find that Rhone’s injuries were

       caused by negligence attributable solely to Appellants. To conclude otherwise

       would, in effect, allow Appellants to dodge their duty to provide a safe worksite

       for all employees working on the Project. We further conclude that under the

       specific undisputed facts and circumstances of this case, the indemnification

       provision at issue is rendered void by Indiana’s Anti-Indemnity Statute.



                                               Conclusion
[33]   Because we conclude that the indemnity provision contained in the Ripberger-

       Davenport Contract is rendered void by Indiana’s Anti-Indemnity Statute, we

       affirm the judgment of the trial court. Further, because we affirm the trial court

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017   Page 28 of 29
       on the question of application of Indiana’s Anti-Indemnity Statute, we need not

       consider the parties’ additional arguments for and against the trial court’s award

       of summary judgment to Secura and Davenport.


[34]   The judgment of the trial court is affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CT-811 | May 24, 2017   Page 29 of 29
