Court of Appeals of Indiana | Opinion 19A-CT-2326 | April 27, 2020 Page 1 of 8

ATTORNEYS FOR APPELLANTS

Thomas R. Schultz

Schultz & Pogue, LLP

Indianapolis, Indiana

Andrew H. Cox

Carolyn M. Cole

Thompson Hine LLP

Cleveland, Ohio

ATTORNEY FOR APPELLEE

Adam S. Willfond

Office of Corporation Counsel

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

The Davey Tree Expert 

Company and Davey Resource 

Group, Inc.,

Appellants/Cross-claim Defendants,

v.

The City of Indianapolis,

Appellee/Cross-claim Plaintiff

April 27, 2020

Court of Appeals Case No.

19A-CT-2326

Appeal from the 

Marion Superior Court

The Honorable 

John M.T. Chavis, II, Judge

Trial Court Cause No.

49D05-1709-CT-35165

Vaidik, Judge.
Court of Appeals of Indiana | Opinion 19A-CT-2326 | April 27, 2020 Page 2 of 8

Case Summary

[1] Steven Smock died after a tree fell onto his car while he was driving on an 

Indianapolis street. Steven’s wife filed a wrongful-death lawsuit against the 

City of Indianapolis (“the City”) and Davey Resource Group, Inc., and The 

Davey Tree Expert Company (collectively, “Davey Tree”), whom the City had 

hired to inventory trees. The complaint sets forth four counts, two against the 

City (negligence and gross negligence) and two against Davey Tree (negligence 

and gross negligence). The City filed a cross-claim for declaratory judgment 

against Davey Tree, claiming that Davey Tree had to defend it according to 

their contract. The City moved for judgment on the pleadings as to its crossclaim, which the trial court granted. Davey Tree now brings this interlocutory 

appeal. 

[2] The parties agree that, according to the contract, Davey Tree’s defense 

obligation is only triggered if the City is sued for Davey Tree’s negligence. 

Because the claims against the City are based entirely on its conduct, Davey 

Tree does not have to defend the City. We therefore reverse the trial court. 

Facts and Procedural History

[3] In May 2013, the City and Davey Tree entered into a services contract, which 

has been amended several times. See Appellee’s App. Vol. II pp. 22, 43, 45, 48. 

The contract obligated Davey Tree to inventory trees in areas determined by the 

City, “collect data for each individual tree inventoried using City protocol,” and 
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“inspect all wooded right of ways and inventory any hazardous trees using 

inventory protocol.” Id. at 33. In addition, Section 5.10 of the contract, 

entitled “Indemnification,” addresses Davey Tree’s duty to defend and 

indemnify the City under certain circumstances:

[Davey Tree] agrees to indemnify, defend, and hold harmless the 

City of Indianapolis, Marion County, and their respective 

officers, agents, officials and employees for any and all third 

party claims, actions, causes of action, judgments and liens to the 

extent they arise out of any negligent or wrongful act or omission 

or breach of any provision of this Agreement by [Davey Tree] or 

any of its officers, agents, employees or subcontractors regardless 

of whether or not it is caused in part by the negligence of a party 

indemnified hereunder.

Id. at 28. 

[4] On September 17, 2016, Steven was driving east on West 91st Street between 

Ditch Road and Spring Mill Road in Indianapolis when a “decomposing” tree 

fell onto his car. Appellants’ App. Vol. II p. 40. Steven was taken to the 

hospital, where he later died from his injuries. In September 2017, Steven’s 

wife, Evelyn, as special administrator of Steven’s estate, filed a wrongful-death 

complaint against the City, which she amended in August 2018 to include 

Davey Tree as a defendant. The amended complaint sets forth four counts—

two against the City (negligence and gross negligence) and two against Davey 

Tree (negligence and gross negligence). 

[5] In November 2018, the City asked Davey Tree to defend it under the contract, 

but Davey Tree refused. In January 2019, the City filed a cross-claim for 
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declaratory judgment against Davey Tree, alleging that the wrongful-death 

lawsuit “triggered [Davey Tree’s] obligation under the contract to defend the 

City.” Appellee’s App. Vol. II p. 19. In April 2019, the City moved for 

judgment on the pleadings as to its cross-claim. The trial court granted the 

City’s motion.

[6] Davey Tree now brings this interlocutory appeal.

Discussion and Decision

[7] Davey Tree contends that the trial court erred in granting the City’s motion for 

judgment on the pleadings on the City’s cross-claim. Judgment on the 

pleadings is available where it is clear from the face of the pleadings that one 

party is entitled to prevail as a matter of law. Ind. Trial Rule 12(C); ESPN, Inc. 

v. Univ. of Notre Dame Police Dep’t, 62 N.E.3d 1192, 1195 (Ind. 2016). Pleadings 

consist of a complaint and an answer, a reply to any counterclaim, an answer to 

a cross-claim, a third-party complaint, an answer to a third-party complaint, 

and any written instruments attached to a pleading. Hendricks Cty. v. Green, 120 

N.E.3d 1118, 1122 (Ind. Ct. App. 2019), trans. denied. We review the trial 

court’s ruling on a motion for judgment on the pleadings de novo. ESPN, 62 

N.E.3d at 1195. Our review is confined to the pleadings, accepting wellpleaded material facts in the complaint as true. Id. 

[8] The issue is whether Davey Tree must defend the City under Section 5.10 of the 

contract, which provides in part:
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[Davey Tree] agrees to indemnify, defend, and hold harmless

the City of Indianapolis, Marion County, and their respective 

officers, agents, officials and employees for any and all third 

party claims, actions, causes of action, judgments and liens to 

the extent they arise out of any negligent or wrongful act or 

omission or breach of any provision of this Agreement by 

[Davey Tree] or any of its officers, agents, employees or 

subcontractors regardless of whether or not it is caused in part

by the negligence of a party indemnified hereunder. 

Appellee’s App. Vol. II p. 28 (emphases added). 

[9] The parties agree that Davey Tree’s defense obligation is “only triggered if the 

City is sued for Davey’s negligence . . . .” Appellants’ Reply Br. p. 2; see also

Appellee’s Br. p. 10 (“Davey must defend the City from Davey’s negligence in a 

lawsuit if it arises from the negligent performance of its duties laid out in the 

contract . . . .” ). What the parties disagree about is whether the City is being 

sued in part for Davey Tree’s negligence (which would trigger Davey Tree’s 

duty to defend) or whether the City is being sued for its negligence only (which 

would not trigger Davey Tree’s duty to defend). To resolve this issue, we look 

to the allegations in the complaint. 

[10] The complaint sets forth two counts against the City—negligence and gross 

negligence. The negligence count alleges:

23. [The City] and/or its agencies and departments, and each of 

them, jointly and severally, had a duty to protect passersby from 

harm, and to maintain, monitor, implement, review and/or 

ensure that adequate measures were in place to prevent or curtail 
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overgrowth and/or ensure the vegetative condition of flora 

contained within its public right of way.

24. [The City] and/or its agencies and departments, and each of 

them, jointly and severally, had a duty to protect Steven from 

physical injury.

25. [The City] and/or its agencies and departments, and each of

them, jointly and severally, breached each and every one of the 

foregoing duties, and as a direct and proximate result of such 

breaches, [Evelyn] has sustained damages, including, but not 

limited to, the loss of the love and companionship of Steven and 

the damages that the Special Administrator is entitled to recover

pursuant to I.C. § 34-23-1-l.

Appellants’ App. Vol. II p. 41. The gross negligence count alleges that the City 

“recklessly failed to perform its duties.”1Id. at 43. The counts against the City 

say nothing about Davey Tree or its negligence, let alone allege that the City is

“responsible for,” “liable for,” or “vicariously liable for” Davey Tree’s 

negligence. Cf. Myers v. Bremen Casting, Inc., 61 N.E.3d 1205, 1211 (Ind. Ct. 

App. 2016) (“In the complaint, the Myerses alleged the Defendants . . . were 

vicariously liable as principals . . . .”), trans. denied; Ford v. Jawaid, 52 N.E.3d 

1 The negligence count against Davey Tree alleges as follows:

27. [Davey Tree] and/or its agents and/or principals, and each of them, jointly and severally, had a 

duty to locate and/or identify and inventory all trees in and/or around the Property, and to 

determine and/or assess the relative risk of each tree with respect to the potential for failure and/or 

the potential to cause harm.

Appellants’ App. Vol. II p. 42. The gross negligence count alleges that Davey Tree “recklessly failed to 

perform its duties.” Id. at 43.
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874, 876 (Ind. Ct. App. 2016) (“The amended complaint alleged negligence by 

Jawaid, negligence by the Hospital, . . . and vicarious liability of the Hospital 

for Jawaid’s conduct.”). Thus, although the City claims that it “is not seeking a 

defense for its own negligence,” Appellee’s Br. p. 17, the claims against the City

are based entirely on its conduct. 

[11] Nevertheless, the City argues that “[w]hile separate counts are alleged against 

the City and Davey, the allegations against the parties are inextricably 

intertwined.” Appellee’s Br. p. 14. The City reasons: “If Davey did not 

perform competently, as the allegations suggest, then the City would be in no 

position to remedy (or know about) the dangerous condition which killed 

[Steven]. Stated differently, the City’s negligence, in part, was caused by 

Davey’s negligence.” Id. We acknowledge that there is a close relationship 

between the allegations against the City and Davey Tree. This is because the 

City hired Davey Tree to inventory dangerous trees, and a decomposing tree 

fell and killed Steven. But the allegations against each party are different. The 

negligence count against Davey Tree alleges that it had a duty to inventory and 

assess the risk of trees in the area where the tree fell down—not that it had a 

duty to cut down any trees—and that Davey Tree breached this duty. The 

negligence count against the City alleges, among other things, that it had a duty 

to “ensure the vegetative condition of flora contained within its public right of 

way,” i.e., a duty to cut down any trees identified by Davey Tree as dangerous, 

and that the City breached this duty. According to the complaint as it is 

currently drafted, the City is being sued for its conduct only, not any conduct by 
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Davey Tree.

2 Because the City is being sued for its conduct only, the claims

against the City do not “arise out of” any act or omission by Davey Tree. 

Accordingly, Davey Tree does not have to defend the City under the contract. 

We therefore reverse the trial court.

3

[12] Reversed.

Najam, J., and Tavitas, J., concur.

2

If the complaint alleged that the City negligently hired or supervised Davey Tree, then there might be a 

duty to defend. This is because a claim of negligent hiring or supervision is ultimately based on the 

negligence of the party hired or supervised. See Simpson v. OP Prop. Mgmt., LLC, 939 N.E.2d 1098, 1103 (Ind. 

Ct. App. 2010) (“Simpson’s claim that the School District negligently hired and trained Matesick by 

implication indicates that she was claiming that Matesick’s conduct was wrongful. We are hard pressed to 

see how the School District could be negligent by hiring and training a bus driver who had done nothing 

wrong.”). We do not read the complaint to set forth a claim for negligent hiring or supervision, and the City 

does not argue that it sets forth such a claim.

3

In its order, the trial court also stated, “In the event that the trier of fact determines that the City is solely 

responsible for [Steven’s] injuries, then Davey [Tree] has an argument that it is relieved from its 

indemnification obligation.” Appellants’ App. Vol. II p. 16. Davey Tree challenges this conclusion, citing 

the following language from the indemnification clause: “[Davey Tree] shall be relieved of its 

indemnification obligation to the extent any injury, damage, death or loss is attributable to the acts or 

omission of City.” Appellee’s App. Vol. II p. 28. Davey Tree contends that the “to the extent” language 

means that it will be relieved of its indemnification obligation even if both parties are found partially 

responsible—i.e., even if the City is not found “solely responsible”—as long as the City’s liability is based 

solely on its own negligence and is not based on Davey Tree’s negligence. The City does not dispute that this 

is the correct reading of the indemnification clause. Because the complaint as it is currently drafted does not 

allow the City to be held liable for Davey Tree’s negligence, indemnification is not at issue.