APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Michael D. Keele, Judge. Cause No. 49D07-1110-CT-39154.
ATTORNEYS FOR APPELLANT/APPELLEE, MENARD, INC.: KEVIN C. TYRA, ELIZABETH H. STEELE, The Tyra Law Firm, P.C., Indianapolis, Indiana.
ATTORNEY FOR APPELLANT, BLUE LINE LP, INC.: SCOTT L. BARNHART, Keffer Barnhart, LLP, Indianapolis, Indiana.
ATTORNEY FOR APPELLANT, ARTHUR BARNARD, III: ADAM LENKOWSKY, Roberts & Bishop, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE, CAPITOL SPECIALTY: SCOTT A. HARKNESS, CYNTHIA E. LASHER, Norris Choplin Schroeder LLP, Indianapolis, Indiana.
BAKER, Judge. MAY, J., and BARNES, J., concur.
Arthur Barnard was allegedly physically attacked by a Blue Line loss prevention officer outside a Menard store. The loss prevention officer suspected that Barnard had stolen something from the store. Barnard was injured and incurred medical expenses as a result of the incident. He filed a complaint against Menard and Blue Line, and Menard and Blue Line later filed third-party complaints against their insurer, Capitol Specialty Insurance Corporation (Capitol), invoking the insurer's duties to defend and indemnify. The trial court granted summary judgment in favor of Menard on Barnard's complaint and in favor of Capitol on the third-party complaints.
We find no error in the summary judgment order in favor of Menard on Barnard's complaint. With respect to the third-party complaints against Capitol, we find that it was erroneous to grant summary judgment in favor of Capitol and that, instead, summary judgment should have been entered in favor of Menard and Blue Line with respect to Capitol's duty to defend. Therefore, we affirm in part, reverse in part, and remand for further proceedings.
On March 18, 2010, Barnard went to a Menard's store located at 7140 South Emerson Avenue in Indianapolis. Barnard had just been released by a hospital following surgery. After shopping, Barnard and his fiancé e purchased certain items and exited the store. As they headed for their van in the parking lot, a loss prevention officer allegedly grabbed Barnard by the arm, slammed him into the van, and threw him on the ground. The loss prevention officer then forced Barnard back into the store, accusing Barnard of stealing a hasp worth $1.99. Barnard claims that he was detained in the store for an unreasonable amount of time, that he was slandered, and that he was injured as a result of the incident.
The loss prevention officer is employed by Blue Line, which contracted with Menard to provide security services. The Contract provides that Blue Line's primary duties include the prevention of " the loss of merchandise, property and shoplifter apprehension." Barnard App. p. 56. The Contract further stipulates that " [n]othing in this Agreement shall be construed in any manner to create an agency or employer-employee relationship between Menards and [Blue Line], and it is expressly understood, acknowledged and agreed that [Blue Line] is an independent contractor." Id. at 57. Finally, the Contract requires that Blue Line shall " defend, indemnify and hold harmless Menards, its agents and its employees from any liability, damages, expenses, claims, demands, actions or causes of action, including attorney fees, arising out of the work hereunder . . . ." Id. at 58.
Blue Line is insured by Capitol, and Menard is listed as an additional insured on the relevant policy (the Policy). The Policy provides that Capitol has a duty to defend Blue Line and Menard against any lawsuit seeking damages for bodily injury, property damage, and personal and advertising injury. " Personal and advertising injury" is defined as " false arrest, detention, or imprisonment," and " [o]ral or written publication in any manner . . . that slanders or libels a person . . . ." Menard App. p. 80. The Policy also, however, has an endorsement excluding coverage for assault and battery.
On January 31, 2012, Barnard filed an amended complaint against Menard and Blue Line. In the complaint, Barnard sought damages based on the following grounds:
16. That the Defendants were negligent and as a direct and proximate result of carelessness and negligence of the Defendants, Plaintiff was injured.
17. The Defendants, and each of them, were reckless and negligent, including but [not] limited to the following ways:
a. The employee and/or agent used excessive force in detaining Plaintiff. The manager of Defendant's store failed to obtain immediate medical care for the Plaintiff all in reckless disregard of Plaintiff's injuries.
b. Defendants violated Indiana statutory law by illegally detaining Plaintiff for a period in excess of that allowed by statute.
c. The use of unnecessary excessive force upon the person of the Plaintiff.
d. Plaintiff was battered by Menard's employee and/or agent.
18. That Plaintiff was required to employ medical professionals to treat his physical and psychological injuries[,] incurred medical expenses for the treatment of his injuries and sustained great pain and suffering
Barnard App. p. 22. In November 2012, Menard and Blue Line each filed a third-party complaint against Capitol, seeking to enforce the duty to defend and indemnify included in the Policy.
On December 10, 2013, Menard filed a motion for summary judgment on Barnard's complaint. Menard contended that because Blue Line was an independent contractor, Menard owed no duty of care to Barnard. The trial court granted Menard's summary judgment motion on June 12, 2014, finding as follows:
The actions allegedly taken by [Blue Line's] loss-prevention officer were not reasonably foreseeable by Menard, so Menard did not breach any duty owed to [Barnard] as a business invitee on the premises and [Blue Line] was an independent contractor of Menard as a matter of law, and a principal is not liable for the negligence of its independent contractors.
Id. at 14. Barnard now appeals.
With respect to Menard's and Blue Line's third-party complaints against Capitol, Menard, Blue Line, and Capitol each filed cross-motions for summary judgment. Capitol argued that the Assault and Battery Exclusion excuse it from having to defend and indemnify either Menard or Blue Line. The trial court granted Capitol's summary judgment motion on June 12, 2014, finding as follows:
The Court finds the designated evidence shows all claims arise out of and/or relate to an assault or battery and that no other party has designated any facts to the contrary. The Court further finds that [the assault and battery exclusion] expressly and unambiguously states that Capitol has no duty to defend or indemnify any insured against any claim or suit for injury arising out of or relating to an assault or battery.
Menard App. p. 430. Consequently, the trial court denied Menard's and Blue Line's motions for summary judgment and entered a declaratory judgment that Capitol owed no coverage to Menard, Blue Line, or Barnard. Menard and Blue Line now appeal.
DISCUSSION AND DECISION
We apply a de novo standard of review to a trial court's order granting or denying summary judgment. Alldredge v. Good Samaritan Home, Inc., 9 N.E.3d 1257, 1259 (Ind. 2014). Therefore, we apply the same standard as the trial court: summary judgment is appropriate only where the movant demonstrates there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Id. We resolve all questions and view all evidence in the light most favorable to the non-movant, so as to not improperly deny him his day in court. Id.
I. Barnard vs. Menard
Barnard argues that the trial court erroneously concluded that Menard had no enforceable duty to Barnard. First, Barnard argues that Menard owed him a general duty of reasonable care as a business invitee. Second, Barnard argues that Blue Line was an employee, rather than an independent contractor, of Menard, such that liability attaches to Menard via the doctrine of respondeat superior. Finally, Barnard contends that even if Blue Line was ...