Court of Appeals of Indiana | Memorandum Decision 66A04-1612-CT-2752 | May 31, 2017 Page 1 of 13

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Edward A. Chapleau

South Bend, Indiana

ATTORNEY FOR APPELLEE

Mark A. Lienhoop

Newby, Lewis, Kaminski &

Jones, LLP

LaPorte, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Health Professionals, Ltd.,

Appellant/Cross-Appellee,

Third-Party Defendant,

v.

Michael Gayer, Sheriff,

Pulaski County, Indiana,

Appellee/Cross-Appellant,

Third-Party Plaintiff

May 31, 2017

Court of Appeals Case No.

66A04-1612-CT-2752

Appeal from the Pulaski Circuit 

Court

The Honorable Michael A. Shurn, 

Judge

Trial Court Cause No.

66C01-1003-CT-4

Baker, Judge.
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[1] The Pulaski County jail contracted with Health Professionals, Ltd. (Health 

Professionals), for the provision of healthcare services to jail inmates. The 

contract included a provision requiring Health Professionals to indemnify and 

defend the County from claims related to the negligence of Health 

Professionals. An inmate sued the County, alleging that he had received 

negligent medical care at the jail. The County demanded that Health 

Professionals provide a defense from the complaint; Health Professionals

refused. The County then filed a third-party complaint against Health 

Professionals. Following a bench trial, the trial court found in favor of the 

County. 

[2] Health Professionals now appeals, arguing that it had no duty to defend or 

indemnify the County; the County cross-appeals the amount of damages 

awarded by the trial court. Finding no error with respect to the judgment in 

favor of the County, but finding a question with respect to the trial court’s 

intended damages award, we affirm and remand for further proceedings.

Facts

[3] During the relevant period of time, the County and Health Professionals were 

in a contractual relationship, pursuant to which Health Professionals provided 

healthcare services to jail inmates and detainees. The contract between the 

County and Health Professionals contained the following indemnification 

provision:
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INDEMNIFICATION. HPL will only be responsible for claims 

resulting from HPL’s negligence while performing its duties 

under this Agreement. If a claim is brought against the 

COUNTY relating to HPL’s negligent performance of its duties 

under this Agreement, the COUNTY shall promptly notify HPL 

of the claim. HPL will take all steps necessary to promptly 

defend and protect the COUNTY including the retention of the 

defense counsel. However, HPL will not be responsible for any 

claims arising out of (1) COUNTY or its employees or agents 

intentionally preventing an inmate from receiving medical care 

ordered by HPL or its agents, employees or independent 

contracts [sic]; or (2) negligence of COUNTY’s employees or 

agent [sic] in promptly presenting an ill or injured inmate to HPL 

for treatment if it should have been obvious to a non-medical 

individual that the inmate was in serious need of immediate 

attention.

Tr. Vol. III p. 17.

[4] Health Professionals was responsible for, among other things, prescribing, 

dispensing, and administering medication; conducting inmate health 

assessments; and conducting sick calls on a timely basis. Health Professionals 

agreed to have a physician and/or nurse on call twenty-four hours per day, 

seven days per week. Additionally, Health Professionals agreed to arrange for 

hospitalization and other off-site services, such as x-rays, for all inmates who 

were determined to need such treatment by Health Professionals staff.

[5] The jail staff did not provide inmates with prescription medication or perform 

medical examinations. More specifically, jail personnel were not trained to 

administer healthcare other than CPR, defibrillation, minor emergency first aid, 

and trying to stop bleeding in a life-threatening emergency. Only if no one from 
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Health Professionals was available and it was obvious to a lay person that an 

inmate was in serious need of medical attention would jail personnel call an 

ambulance on their own to transport that inmate to a hospital—relieving jail 

staff from making such medical decisions was a major reason for contracting 

with Health Professionals.

[6] In April 2008, Layne Scheffer was an inmate at the jail; Scheffer has a seizure 

disorder. On April 3, 2008, Scheffer had a grand mal seizure. Jail personnel 

responded by wrapping a blanket around his head until the seizure subsided and 

then moved him by wheelchair to a holding cell, where Scheffer complained of 

right shoulder pain. Jail staff called the Health Professionals nurse to report the 

situation, and the nurse ordered that Scheffer be given an ice pack and be put 

on medical watch. Health Professionals staff examined Scheffer on April 4 and 

on another eight occasions in the subsequent weeks. Health Professionals staff 

also prescribed medication for Scheffer.

[7] At some point, Health Professionals advised the jail commander to contact the 

Department of Correction (DOC) to transport Scheffer for an x-ray. There is 

no evidence that Health Professionals had advised the jail commander of the 

history of Scheffer’s condition or diagnosis. Despite multiple attempts, the jail 

commander was unable to reach DOC for transportation and advised a Health 

Professionals nurse of the situation. On April 18, 2008, Health Professionals 

called the DOC to request that Scheffer be transported for an x-ray, and 

Scheffer was picked up the same day. The x-ray revealed that Scheffer had 

fractured his shoulder. Scheffer ended up needing surgery to repair the fracture.
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[8] On March 20, 2010, Scheffer sued the County, alleging that the County had 

been negligent in its medical care and that its negligence led to his injuries. The 

County notified Health Professionals of the complaint and demanded that 

Health Professionals defend and indemnify the County pursuant to the 

Contract. Health Professionals refused, and the County retained an attorney.

[9] On May 20, 2010, the County filed a third-party complaint against Health 

Professionals, alleging that Health Professionals had a duty to defend and 

indemnify the County pursuant to the indemnification provision in the 

Contract. The County filed a motion for summary judgment in Scheffer’s 

complaint; on October 5, 2015, the trial court granted that motion based on its 

conclusion that the County had immunity.

[10] The trial court held a bench trial on August 10, 2016, in the County’s thirdparty complaint against Health Professionals. On November 11, 2016, the trial 

court issued an order finding in favor of the County. In relevant part, the trial 

court found as follows:

. . . HPL further promised “[i]f a claim is brought against 

COUNTY relating to HPL’s negligent performance of its duties 

under this Agreement . . . HPL will take all necessary steps 

necessary to promptly defend and protect the County including 

the retention of the defense counsel.” . . . HPL provided health 

care to inmates of County under a contract with County. HPL 

was an unnamed third party for purposes of liability. . . . HPL 

should have provided a defense with counsel through entry of 

summary judgment and disposition of the potential appeal. 

Ironically, HPL most ably through its counsel sat second chair 

for the entire proceedings but never stepped forward to relieve 
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County of its obligation to hire its own counsel. HPL should 

now be responsible to County for the fees of its counsel to defend 

Gayer and determine this matter.

Appellant’s App. p. 21. The trial court ordered Health Professionals to pay the 

County damages in the amount of $75,496.48. Health Professionals now 

appeals, and the County cross-appeals the amount of the damages order.

Discussion and Decision

I. Indemnification Provision

[11] The trial court’s order here is a general judgment, which we will affirm if there 

is substantial evidence of probative value supporting the judgment on any legal 

theory. Eagledale Enters., LLC v. Cox, 816 N.E.2d 917, 922 (Ind. Ct. App. 2004). 

This case also requires us to interpret the Contract, which is a pure question of 

law to which we apply a de novo standard of review. Broadbent v. Fifth Third 

Bank, 59 N.E.3d 305, 311 (Ind. Ct. App. 2016), trans. denied. Our goal is to give 

effect to the intent of the parties as expressed within the four corners of the 

document. Id. 

[12] Health Professionals raises the following arguments: (1) because the trial court 

granted summary judgment for the County in the underlying complaint, no 

liability was fixed and no indemnification is owed; (2) the indemnification 

provision is unenforceable because to apply it here would indemnify the County 
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for the County’s own negligence; and (3) the indemnification provision does 

not provide for attorney fees.1

[13] The County’s claim against Health Professionals is, essentially, a breach of 

contract claim. The County argues, among other things, that Health 

Professionals breached its duty to defend the County against Scheffer’s 

negligence claim. Consequently, we must first determine whether, in fact, 

Health Professionals breached the Contract.

[14] As noted above, the indemnification provision provides as follows:

HPL will only be responsible for claims resulting from HPL’s 

negligence while performing its duties under this Agreement. If a 

claim is brought against the COUNTY relating to HPL’s negligent 

performance of its duties under this Agreement, the COUNTY shall 

promptly notify HPL of the claim. HPL will take all steps necessary 

to promptly defend and protect the COUNTY including the retention of 

the defense counsel. However, HPL will not be responsible for any 

claims arising out of (1) COUNTY or its employees or agents 

intentionally preventing an inmate from receiving medical care 

ordered by HPL or its agents, employees or independent 

contracts [sic]; or (2) negligence of COUNTY’s employees or 

agent [sic] in promptly presenting an ill or injured inmate to HPL 

for treatment if it should have been obvious to a non-medical 

 

1 Health Professionals also argues that the County should have filed a declaratory judgment action rather 

than a third-party complaint. While it is true that such a course of action would have been permitted—and, 

indeed, Health Professionals likewise had the option to file a declaratory judgment action seeking a 

declaration that it had no duty to defend or indemnify the County—there is no authority supporting a 

proposition that a declaratory action was required and a third-party complaint was prohibited. This argument 

is unavailing.
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individual that the inmate was in serious need of immediate 

attention.

Tr. Vol. III p. 17 (emphases added). We must consider, therefore, whether 

Scheffer’s claim against the County “related to” Health Professionals’ alleged 

negligence.

[15] Scheffer’s complaint includes two specific acts of alleged negligence: (1) failure 

to provide appropriate seizure medication and (2) failure to perform an 

appropriate medical examination after his seizure.2 As noted above, under the 

Contract, Health Professionals is responsible for administering prescription 

medication to and conducting medical examinations of the inmates. Jail 

personnel were neither trained in nor authorized to take those actions. It is 

apparent, therefore, that Scheffer’s complaint “relates to” allegedly negligent 

acts by Health Professionals. Consequently, when the County notified Health 

Professionals of Scheffer’s complaint and demanded that Health Professionals 

defend it, the refusal to defend was a breach of the Contract.

[16] The arguments made by Health Professionals that indemnification is 

improper—either because Scheffer’s complaint was dismissed or because it 

would indemnify the County for its own alleged negligence—miss the point. 

The trial court’s order here does not result in indemnification. Instead, it 

 

2 The complaint also includes a catch-all allegation covering “any other act of negligence which may be 

proven at trial of this matter.” Appellant’s App. p. 26. In theory, this could encompass negligent acts of the 

County, but even if that were the case, the fact that the two explicit actions included in the complaint “relate 

to” the actions of Health Professionals means that the duty to defend was triggered.
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compensates the County for Health Professionals’ breach of its duty to defend 

the County from Scheffer’s lawsuit. See Henthorne v. Legacy Healthcare, Inc., 764 

N.E.2d 751, 757 (Ind. Ct. App. 2002) (holding that duty to defend is 

independent of duty to indemnify).

[17] That leaves us with the question, however, of how the County’s damages 

should be properly quantified. In Legacy, Legacy had contracted for Sunshine 

Rehab to provide therapy to the residents at Legacy, a nursing facility. 

Sunshine Rehab agreed to defend and indemnify Legacy from all liability, loss, 

cost, or expense arising from Sunshine Rehab’s performance under the contract. 

The estate of a former Legacy resident sued Legacy and Sunshine Rehab for 

severe burns to that resident, allegedly caused by a Sunshine Rehab therapist. 

Sunshine Rehab refused to defend or indemnify Legacy, and Legacy then filed 

a cross-claim. This Court noted that, as in the instant case, the contract 

provided that Sunshine Rehab was obligated to defend only for its own 

negligence and not for Legacy’s. Id. at 760. The fault apportionment between 

Sunshine Rehab and Legacy had not yet been determined, however, so this 

Court remanded for apportionment and calculation of damages. Id.

[18] Here, as in Legacy, Health Professionals owed a duty to defend the County from 

Scheffer’s complaint but not for claims arising from the County’s own 

negligence. Unlike Legacy, which was decided in the context of a summary 

judgment order, the case before us stems from a bench trial during which the 

trial court was able to consider evidence relating to the respective fault of the 

parties. While the trial court did not make an explicit finding with respect to 
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fault apportionment, we infer from its order that it found that Scheffer’s 

complaint stemmed solely from the alleged negligence of Health Professionals. 

The following evidence supports that implicit conclusion:

 Health Professionals was responsible for prescribing, dispensing, and 

administering medication to inmates. It was also responsible for medical 

examinations and conducting sick calls on a timely basis.

 Jail personnel were not trained on medical procedures aside from 

emergency life-saving techniques such as CPR.

 Health Professionals conducted all examinations of this inmate.

 The need for and timing of off-site tests such as x-rays was a medical 

decision made solely by Health Professionals.

 At some point, Health Professionals advised the jail commander to 

contact the DOC to transport Scheffer for an x-ray. The jail commander 

telephoned DOC and left four messages over the course of three days. 

There is no evidence that Health Professionals had advised the jail 

commander of the specific circumstances of Scheffer’s condition.

 After the jail commander was unable to reach DOC, he called a Health 

Professionals nurse and indicated he had left messages but not actually 

reached anyone. The nurse replied, “Okay.” Tr. Vol. II p. 46.

 On April 18, 2008, Health Professionals called the DOC, who picked up 

Scheffer that same day. The jail commander testified that DOC had 

picked up the inmate because they had gotten the commander’s 

messages.

The trial court had the benefit of reviewing all the evidence, observing all the 

witnesses, and evaluating the credibility of those witnesses. Having done so, it 

implicitly concluded that Health Professionals was solely responsible for the 

alleged negligence underlying Scheffer’s complaint, and we cannot and will not 

second-guess that conclusion. There is substantial evidence of probative value 

supporting the trial court’s conclusion that, based on the Contract, Health 

Professionals “should have provided a defense” to the County from Scheffer’s 
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complaint and its order that Health Professionals “should now be responsible to 

County for the fees of its counsel” incurred during the defense of Scheffer’s 

claim. Appellant’s App. p. 21.

[19] Health Professionals points out that the indemnification provision does not 

include an attorney fees clause. While that is accurate, it does not mean that a 

reversal is in order. As noted above, the County’s third-party claim against 

Health Professionals is in the nature of a breach of contract claim. Having 

established that Health Professionals breached the Contract, the County is 

entitled to the damages it sustained as a result of that breach, which happens to 

consist of its incurred attorney fees and litigation costs. In other words, this is 

not an attorney fee award based on a contractual provision; it is a contractual 

damages award. See, e.g., Ozinga Transp. Sys., Inc. v. Ash Sales, Inc., 676 N.E.2d 

379, 388 (Ind. Ct. App. 1997) (holding that when a party breaches the duty to 

defend or indemnify, proper damages may include attorney fees and litigation 

costs). Consequently, it is of no moment that the indemnification provision 

does not contain an attorney fees clause and we decline to reverse for this 

reason.

[20] In sum, Health Professionals owed a duty to defend the County from claims 

relating to the alleged negligence of Health Professionals. The trial court 

implicitly found that Scheffer’s complaint was based solely on the alleged 

negligence of Health Professionals, and it drew this conclusion having 

conducted a bench trial, assessed witness credibility, and evaluated and 
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weighed all of the evidence. There is substantial evidence of probative value 

supporting the trial court’s order; consequently, we affirm.

II. Cross-Appeal

[21] The County appeals the amount of the trial court’s attorney fee award. On July 

11, 2016, the County filed a brief in support of a motion for judgment on the 

evidence. That brief indicated that, as of that date, the total amount of incurred 

attorney fees and litigation costs was $75,496.48. At the August 10, 2016, 

bench trial, evidence was presented that, as of that date, the total amount had 

increased to $83,622.09. The trial court ordered Health Professionals to pay 

damages in the amount of $75,496.48.

[22] The County insists that “[i]t is clear that the trial court intended to award the 

entire amount of the attorney fees and expenses incurred by the County” in 

defending Scheffer’s claim and prosecuting the third-party complaint. 

Appellee’s Br. p. 39-40. It argues, therefore, that the trial court may have made 

an inadvertent error by selecting the July 11 amount rather than the August 10 

amount of fees incurred.

[23] The County has indicated its intent to seek further compensation for the 

attorney fees and costs incurred defending this appeal. If, in fact, the trial court 

made an inadvertent error in its original calculation of attorney fees, that error 

could be corrected upon request at this anticipated hearing.
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[24] The judgment of the trial court is affirmed and remanded for further 

proceedings.

Barnes, J., and Crone, J., concur.