from the Lake Superior Court The Honorable William E. Davis,
Judge Trial Court Cause No. 45D05-1506-PL-43
ATTORNEY FOR APPELLANT Michael L. Schultz Parr Richey
Obremskey Frandsen & Patterson LLP Indianapolis, Indiana
FOR APPELLEE ZURICH AMERICAN INSURANCE COMPANY Kyle A.
Lansberry Lewis S. Wooton Michael R. Giordano Lewis Wagner,
LLP Indianapolis, Indiana
ATTORNEYS FOR APPELLEE ROADSAFE HOLDINGS, INC. T. Allon
Renfro Swanson, Martin & Bell, LLP Chicago, Illinois
Robert P. Conlon Joyce F. Noyes Walker Wilcox Matousek LLP
of the Case
Walsh Construction Company ("Walsh") appeals the
trial court's entry of summary judgment in favor of
Zurich American Insurance Company ("Zurich") on
Walsh's complaint for declaratory judgment. Walsh raises
three issues for our review, which we consolidate and restate
as whether the trial court erred when it entered summary
judgment for Zurich. As a matter of first impression, we hold
that a self insured retention endorsement to a commercial
general liability insurance policy requires the named insured
to satisfy the amount of the endorsement, whether on its own
behalf or on behalf of an additional insured, before the
additional insured may seek to enforce the policy against the
insurer. As that has not occurred here, we affirm the trial
court's entry of summary judgment for Zurich.
and Procedural History
In January of 2009, Walsh, a general contractor, hired
Roadsafe Holdings, Inc. d/b/a Roadsafe Traffic Systems, Inc.
("Roadsafe") to be Walsh's subcontractor in the
construction of a traffic exchange involving Interstates 65
and 80 in Lake County. Roadsafe's work obligations
included providing a safe traffic pattern through the work
zone. Walsh's contract with Roadsafe required Roadsafe to
indemnify Walsh for any liability resulting from
Roadsafe's failure or negligence in its work.
Accordingly, Walsh's contract required Roadsafe to
procure a commercial general liability insurance policy
("CGL policy") that named Walsh as an additional
insured on a primary and noncontributory basis.
Roadsafe obtained its CGL policy from Zurich. The CGL policy
defined Roadsafe as the "Named Insured" and stated
that, "[t]hroughout this policy[, ] the words
'you' and 'your' refer to the Named Insured .
. . . The word 'insured' means any person or
organization qualifying as such under Section II-Who Is An
Insured." Appellant's App. Vol. 3 at 72. An
endorsement attached to the CGL policy named as additional
insureds any "person and organization where required by
written contract, " such as Roadsafe's contract with
Walsh, "but only with respect to liability for
'bodily injury' . . . by your [Roadsafe's] acts
or omissions . . . ." Id. at 99. The CGL policy
then provided as follows: "We [Zurich] will pay those
sums that the insured becomes legally obligated to pay as
damages because of 'bodily injury' . . . to which
this insurance applies. We will have the right and duty to
defend the insured against any 'suit' seeking those
damages." Id. at 72.
However, Roadsafe also obtained a $500, 000-per-occurrence
self insured retention endorsement ("the SIR
endorsement") to the CGL policy. The SIR endorsement
amended the CGL policy as follows:
The insurance provided by this policy is subject to the
following additional provisions, which in the event of
conflict with any other provisions elsewhere in the policy,
shall control the application of the insurance to which this
1. Self Insured Retention and Defense Costs-Your Obligations
A. The "self insured retention" amounts stated . .
. apply as follows:
1. If a Per Occurrence Self Insured Retention Amount is
shown in this endorsement, you shall be responsible for
payment of all damages and "pro rata defense costs"
for each "occurrence" until you have paid damages
equal to the Per Occurrence amount . . . .
B. Defense Costs
Except for any "defense costs" that we may elect to
pay, you shall pay "pro rata defense costs" as they
are incurred . . . .
C. Settlement of Claim
1. Within Self Insured Retention
If any final judgment or settlement is less than the
"self insurance retention" indicated . . . above,
you shall have the right and obligation to settle all such
claims or suits . . . .
2. Excess of Self Insured Retention
You may not settle any claim or suit which exceeds any
"self insured retention" amount indicated . . .
without our written permission to do so. . . .
Compliance with the requirements set forth in this
endorsement is a condition precedent to ...