United States District Court, S.D. Indiana, Indianapolis Division
GRANGE MUTUAL CASUALTY COMPANY individually and as subrogee of AMERICAN SUNCRAFT CONSTRUCTION COMPANY, INC., Plaintiff,
HALLMARK SPECIALTY INSURANCE COMPANY, Defendant.
Carl Trimble LEWIS WAGNER LLP
S. Wooton LEWIS WAGNER LLP
Michael Robert Giordano LEWIS WAGNER LLP
ENTRY ON CROSS MOTIONS FOR SUMMARY JUDGMENT
WALTON PRATT, JUDGE
matter is before the Court on the parties' cross motions
for summary judgment filed pursuant to Federal Rule of Civil
Procedure 56 by Plaintiff Grange Mutual Casualty Company
(“Grange”) (Filing No. 63) and Defendant
Hallmark Specialty Insurance Company (“Hallmark”)
(Filing No. 71). This action arises out of the
denial of tender by Hallmark to provide indemnification and a
defense to Grange's insured, American Suncraft
Construction Company (“Suncraft Construction”),
following a wrongful death suit in which Grange paid $500,
000.00 on behalf of Suncraft Construction. Following the
denial, Grange filed for relief in this Court, requesting
that the Court order Hallmark to make a payment of $500,
000.00 to Grange for indemnification. Both parties moved for
summary judgement on the Complaint. For the following
reasons, the Court DENIES Grange's Motion for Summary
Judgment and GRANTS Hallmark's Cross-Motion for Summary
following facts are undisputed. Both Grange and Hallmark are
insurance companies. Grange is an Ohio corporation with its
principal place of business in Ohio. Grange insures Suncraft
Construction, which is also an Ohio corporation. Hallmark is
a Texas corporation and holds its principal place of business
in Texas. Hallmark insures F&F Coating, Inc.
(“F&F”) which is also a Texas corporation.
2010, Indiana-American Water Co., Inc.,
(“Indiana-American”) an Indiana corporation,
contracted with Suncraft Construction to repair and refurbish
a water tower located in Kokomo, Indiana. On August 23, 2010,
Suncraft Construction subcontracted with F&F to complete
a substantial amount of the repairs on the water tower
(“the Subcontract”). The Subcontract included an
indemnity agreement which states as follows:
To the fullest extent permitted by law, the Subcontractor
[F&F] shall indemnify and hold harmless the Contractor
[American Suncraft Construction], Contractor's
representatives, agents and employees from all claims,
losses, damages and expenses, including attorney's fees
arising out of or resulting from the performance of the work,
provided that such claim, loss, damage or expense is caused
in whole or in part by any negligent act or omission of the
Subcontractor, anyone directly employed by them or anyone
whose acts they are liable for, and attributes to bodily
injury, sickness, disease or death, mold growth, or to injury
to or destruction of tangible property (other than the work
itself) including any resulting loss of use, regardless of
whether or not it is caused in part by a party indemnified
(Filing No. 1-1 at 3).
September 9, 2010, Rodolfo Torrez Vazquez
(“Vazquez”), an employee at F&F, was
repairing the water tower under the Subcontract agreement
between F&F as subcontractor and Suncraft Construction as
contractor. The ladder supporting Vazquez collapsed,
resulting in his tragic death. On April 26, 2011,
Vazquez's estate filed a wrongful death lawsuit in the
United States District Court, Southern District of Indiana,
Case No. 1:10-cv-01346. There is no dispute that Suncraft
Construction and Indiana-American were negligent for failing
to maintain the ladder used by Vazquez at the time of his
death. On March 11, 2013, the wrongful death suit was
dismissed following a settlement, where Grange paid $500,
000.00 to Vazquez's estate on behalf of Suncraft
Construction and $12, 500.00 on the part of Indiana-American.
the underlying tort suit, Grange made several attempts to
obtain reimbursement from Hallmark, through a tender of
defense and a tender of indemnification. Hallmark denied the
tender of defense and did not respond to the tender of
indemnification. As a result, on May 25, 2016, Grange filed
an Amended Complaint against Hallmark, asserting that it is
entitled to indemnity because Suncraft Construction is named
as an additional insured on F&F's Hallmark liability
policy (the “Hallmark Policy”) and pursuant to
the indemnification provision of the Subcontract. (Filing
No. 58 at 4; Filing No. 58-5.) The Hallmark Policy
[Hallmark] will pay those sums that [F&F] becomes legally
obligated to pay as damages because of “bodily
injury” or “property damage” to which this
insurance applies. [Hallmark] will have the right and duty to
defend [F&F] against any “suit” seeking those
damages. However, [Hallmark] will have no duty to defend
[F&F] against any “suit” seeking damages for
“bodily injury” or “property damage”
to which this insurance does not apply.…
(Filing No. 26-1 at 7). Grange also asserts that
F&F agreed to indemnify Suncraft Construction under the
Subcontract and now Hallmark is required to repay Grange the
$500, 000.00 that F&F had an obligation to pay.
(Filing No. 58 at 3-4; Filing No. 58-1.)
response, Hallmark denies that it owed a defense or
indemnification to Grange or Suncraft Construction. Hallmark
argues that Texas law applies and the indemnity provision
under the Subcontract is unenforceable under Texas law.
Hallmark asserts that Suncraft Construction is not a named
insured or an additional insured under the Hallmark Policy.
Hallmark further contends that the wrongful death suit
derived from Suncraft Construction's negligence and the
Hallmark Policy with F&F does not insure against
negligence, therefore it is not legally entitled to
indemnification from F&F under the terms of the contract.
Both parties move for summary judgment on the Complaint.
(Filing No. 63; Filing No. 71.)
SUMMARY JUDGMENT STANDARD
purpose of summary judgment is to pierce the pleadings and to
assess the proof in order to see whether there is a genuine
need for trial.” Matsushita Electric Industrial Co.
v. Zenith Radio Corp., 475 U.S. 574, 587106 S.Ct. 1348
(1986). Under Federal Rule of Civil Procedure 56, summary
judgment is appropriate only where there exists “no
genuine issue as to any material facts and . . . the moving
party is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56. In ruling on a motion for summary judgment,
the court reviews “the record in the light most
favorable to the non-moving party and draw[s] all reasonable
inferences in that party's favor.” Zerante v.
DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation
omitted). “However, inferences that are supported by
only speculation or conjecture will not defeat a summary
judgment motion.” Dorsey v. Morgan Stanley,
507 F.3d 624, 627 (7th Cir. 2007) (citation and quotation
marks omitted). Additionally, “[a] party who bears the
burden of proof on a particular issue may not rest on its
pleadings, but must affirmatively demonstrate, by specific
factual allegations, that there is a genuine issue of
material fact that requires trial.” Hemsworth v.
Quotesmith.com, Inc., 476 F.3d 487, 489-90 (7th Cir.
2007) (citation omitted). “The opposing party cannot
meet this burden with conclusory statements or speculation
but only with appropriate citations to relevant admissible
evidence.” Sink v. Knox County Hosp., 900
F.Supp. 1065, 1072 (S.D. Ind. 1995) (citations omitted).
“[N]either the mere existence of some alleged factual
dispute between the parties nor the existence of some
metaphysical doubt as to the material facts is sufficient to
defeat a motion for summary judgment.” Chiaramonte
v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir.
1997) (citations and quotation marks omitted).
same standards apply even when each side files a motion for
summary judgment. The existence of cross-motions for summary
judgment does not imply that there are no genuine issues of
material fact. R.J. Corman Derailment Serv., LLC v.
Int'l Union of Operating Eng'rs., 335 F.3d 643,
647 (7th Cir. 2003). The process of taking the facts in the
light most favorable to the non-moving party, first for one
side and then for the other, may reveal that neither side has
enough to prevail without a trial. Id. at 648.
“With cross-motions, [the Court's] review of the
record requires that [the Court] construe all inferences in
favor of the ...