MEMORANDUM DECISION ON
REHEARING
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 17 2017, 9:13 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral 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 Michael R. Giordano
Meils Thompson Dietz & Berish Lewis Wagner, LLP
Indianapolis, Indiana Indianapolis, Indiana
ATTORNEY FOR AMICI CURIAE ATTORNEY FOR APPELLEE
DAVENPORT MASONRY
Bryce H. Bennett, Jr.
Elizabeth C. Green Mark D. Gerth
Riley Bennett Egloff LLP Nicholas W. Levi
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Wilhelm Construction, Inc. and August 17, 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
Court of Appeals of Indiana | Memorandum Decision on Rehearing 49A02-1604-CT-811 | August 17, 2017| Page
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Secura Insurance, a Mutual
Company and Davenport
Masonry, Inc.,
Appellees/Third-Party Defendants.
Bradford, Judge.
[1] On May 24, 2017, in an unpublished memorandum decision, we affirmed the
trial court’s decision in favor of Appellees/Third Party Defendants Secura
Insurance, a Mutual Company and Davenport Masonry, Inc.
[2] Appellants/Defendants/Third-Party Plaintiffs Wilhelm Construction, Inc. and
J.C. Ripberger Construction Corp. (“Appellants”) now petition for rehearing.
In petitioning for rehearing, Appellants raise the following three claims: (1)
“Did the Court’s conclusion that vicarious liability via a non-delegable duty
constitutes ‘sole negligence’ under the Anti-Indemnity Statute significantly
depart from decades of Indiana precedent,” (2) “Is the Davenport Contract’s
requirement that Davenport provide insurance to Wilhelm and Ripberger
distinct from whether Davenport owed indemnity, such that the Court should
have addressed the agreement to insure even in light of its decision on
indemnity,” and (3) “Is the Court’s characterization of the trial court’s order as
having found that Wilhelm and/or Ripberger breached a duty to underlying
plaintiff Mark Rhone consistent with the trial court’s order[.]” Appellants’
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Petition for Rehearing, p. 4. Because we find that the first and third claims
levied by the Appellants simply reiterate arguments that were disposed of in our
original memorandum decision, we do not deem it necessary to discuss them
further and hereby deny Appellants’ request for rehearing on these issues.
[3] As for the second claim, Appellants argue on rehearing that this court failed to
rule on the question of whether the Appellants qualified as “Additional
Insureds” under the Secura Policy. Because our Memorandum Decision
handed down on May 24, 2017, did not include a conclusion on this issue, we
grant rehearing for the limited purpose of explicitly stating that we affirm the
trial court’s determinations that (1) Wilhelm did not qualify as an additional
insured under the additional insured provision of the Secura Policy and (2)
Secura does not owe a defense and indemnity to Ripberger because Ripberger
failed to satisfy the conditions precedent to coverage as set forth in the Secura
Policy.
Najam, J, and Bailey, J., concur.
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