Wilhelm Construction, Inc. and J.C. Riberger Construction Corporation v. Secura Insurance, a Mutual Company and Davenport Masoney, Inc. (mem. dec.)

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

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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

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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”).

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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.

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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.

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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

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[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.

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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

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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”;

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(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

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(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”:

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(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:

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(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

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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

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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).

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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.

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[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.

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[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.

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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:

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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.

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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,

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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

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[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.

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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

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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.

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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.

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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

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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.

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