FOR PUBLICATION

ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEE:

GEORGE M. PLEWS RICHARD R. SKILES

JEFFREY D. CLAFLIN JANET M. PRATHER

JONATHAN P. EMENHISER Skiles DeTrude

Plews Shadley Racher & Braun LLP Indianapolis, Indiana

Indianapolis, Indiana

JON S. FALETTO

Hinshaw & Culbertson LLP

Peoria, Illinois

IN THE

COURT OF APPEALS OF INDIANA

FLM, LLC, )

)

Appellant-Plaintiff/Counterclaim Defendant,)

)

and )

)

DAIMLER CHRYSLER CORPORATION, )

n/k/a CHRYSLER LLC, )

)

Appellant-Third-Party Defendant/ )

Counterclaimant, )

)

vs. ) No. 49A02-0902-CV-127

)

THE CINCINNATI INSURANCE COMPANY, )

)

Appellee-Defendant/Third-Party Plaintiff/ )

Counterclaimant/Counterclaim Defendant. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable David J. Dreyer, Judge

Cause No. 49D10-0501-PL-943

August 28, 2012

OPINION - FOR PUBLICATION

KIRSCH, Judge
2

This appeal concerns insurance coverage for claims arising from the abandonment 

of foundry sand from the Indianapolis foundry of Daimler Chrysler Corporation, n/k/a 

Chrysler LLC, (“Chrysler”) by lessee International Recycling Inc. (“IRI”) on lessor FLM, 

LLC’s (“FLM”) property and the migration of the sand onto adjacent property. FLM 

filed a complaint seeking a declaration that IRI has coverage under IRI’s insurance 

policies with The Cincinnati Insurance Company (“Cincinnati”) for the environmental 

liabilities asserted against FLM and for FLM’s own action against IRI. Cincinnati filed a 

counterclaim, seeking a declaration that there was no coverage under the policy for the 

claims, and a third-party complaint for declaratory judgment that brought Chrysler into 

the case. Chrysler subsequently filed a counterclaim against Cincinnati for declaratory 

relief. The trial court granted summary judgment in favor of Cincinnati relating to the 

claims of FLM and Chrysler. FLM and Chrysler appeal raising several issues, of which 

we find the following dispositive: whether IRI’s abandonment of sand constitutes a 

“wrongful entry” or “invasion of the right of private occupancy” covered by the 

“personal injury” provisions of the insurance policies

We reverse and remand with instructions.

FACTS AND PROCEDURAL HISTORY1

FLM is an Indiana company that owns land located at 3515 East Washington 

Street in Indianapolis, Indiana (“FLM’s Property”). On May 14, 1999, FLM leased the 

property to IRI, which planned to use FLM’s Property for the storage, mixing, and 

removal of sand, gravel, and similar materials. Pursuant to the terms of its lease, IRI was 

 

1 Oral argument was heard on this case on February 29, 2012 in Indianapolis. We commend 

counsel on the quality of their written and oral advocacy.
3

required to “comply fully with all federal, state, and local environmental, health, or safety 

statutes, rules, regulations, or ordinances.” Appellants’ App. at 54. If IRI violated this 

provision, allowed the presence of hazardous material to contaminate FLM’s Property, or 

if contamination occurred from which IRI was liable to FLM for damages, IRI was 

required to indemnify FLM against all claims, judgments, damages, penalties, fines, 

costs, liabilities, or losses resulting from such contamination. Id. at 54-55. The lease also 

contained another provision, where IRI agreed to indemnify FLM against all actions, 

claims, demands, costs, damages, or expenses of any kind that may be brought against 

FLM due to IRI’s negligent performance or failing to perform its obligations under the 

lease. Id. at 53. 

Chrysler owned and operated a foundry in Indianapolis, which generated large 

amounts of foundry sand. Chrysler entered into purchase order transactions with IRI for 

the collection, transportation, and beneficial reuse or other appropriate disposal of 

foundry sand generated from Chrysler’s Indianapolis foundry. IRI began depositing 

foundry sand from Chrysler’s facility onto FLM’s Property in May 1999. Chrysler paid 

IRI for the removal of the foundry sand; IRI had only one customer and one source of 

revenue -- Chrysler. 

The Indiana Department of Environmental Management (“IDEM”) characterized 

the foundry sand stored on FLM’s Property as Type III foundry sand. Type III sand may 

be used for certain purposes, including structural fill for roads, construction and 

architectural fill, and raw material in concrete, asphalt, and cement. IRI planned to mix 

the foundry sand with aggregate on FLM’s Property and then to transport it from FLM’s 
4

Property to be used as structural backfill for building and roadway projects. IRI intended 

that the foundry sand would only remain on FLM’s Property temporarily, which was 

consistent with IDEM guidelines for Type III foundry sand. IRI hired a consultant, 

Environmental Resources Management (“ERM”) to ensure that IRI was complying with 

IDEM’s guidelines. After its review, on June 10, 2002, ERM concluded that IRI was in 

compliance with such IDEM guidelines.

In the fall of 2002, Chrysler stopped paying IRI. As a result, IRI could no longer 

fund the removal of the foundry sand from FLM’s Property. In March 2003, IRI stopped 

paying rent to FLM and abandoned over 100,000 tons of foundry sand on FLM’s 

Property, where most remains to this day. In the fall of 2002, CSX Transportation, Inc. 

(“CSX”), which owned property adjacent to FLM’s Property that was used to operate a 

railroad right-of-way, began complaining to IRI that foundry sand was migrating onto its 

property. The foundry sand had allegedly clogged drainage pipes, causing water to 

accumulate on CSX’s property and interfering with train and signal operations. 

Because of complaints it received about the foundry sand, IDEM investigated 

FLM’s Property and observed surface and wind erosion. IDEM issued a Notice of 

Violation (“NOV”) to IRI, FLM, and Chrysler on May 17, 2004 and ordered them to 

remove the foundry sand. On January 13, 2004, the City of Indianapolis (“the City”) 

issued a Notice of Municipal Code Violation (“NOMCV”) to FLM, which found that 

there had been a violation of the sediment control ordinance due to sand migration. As a 

result of this violation, the City ordered that sediment controls be installed and that the 
5

sand be removed unless a drainage permit was obtained. FLM, in turn, sought indemnity 

under the lease from IRI.

Cincinnati insured IRI under a Commercial General Liability (“CGL”) policy 

numbered CPP 071 11 07 (“the CGL Policy”) from May 1, 1999 until March 14, 2003. 

The CGL Policy provided coverage for “Bodily Injury and Property Damage Liability” 

and “Personal and Advertising Injury Liability.” Appellants’ App. at 143, 146. The 

“Bodily Injury and Property Damage Liability” states:

a. We will pay those sums that the insured becomes legally obligated to 

pay as damages because of “bodily injury” or “property damage” to 

which this insurance applies. 

. . . .

b. This insurance applies to “bodily injury” and “property damage” 

only if:

(1) The “bodily injury” or “property damage” is caused by an 

“occurrence” that takes place in the “coverage territory”; and

(2) The “bodily injury” or “property damage” occurs during the 

policy period.

Id. at 143. The CGL Policy defines “occurrence” as “an accident, including continuous 

or repeated exposure to substantially the same general harmful conditions.” Id. at 153. 

The CGL Policy defines “property damage” as:

a. Physical injury to tangible property, including all resulting loss of 

use of that property. All such loss of use shall be deemed to occur at 

the time of the physical injury that caused it; or

b. Loss of use of tangible property that is not physically injured. All 

such loss of use shall be deemed to occur at the time of the 

“occurrence” that caused it.

Id. 
6

The “Personal and Advertising Injury Liability” coverage clause states:

a. We will pay those sums that the insured becomes legally obligated to 

pay as damages because of “personal injury” or “advertising injury” 

to which this insurance applies.

Id. at 146. The CGL Policy defined “personal injury” as “injury other than “bodily 

injury” arising out of one or more of the following offenses: . . . The wrongful eviction 

from, wrongful entry into, or invasion of the right of private occupancy of a room, 

dwelling, or premises that a person occupies by or on behalf of its owner, landlord, or 

lessor . . . .” Id. at 153. 

Cincinnati also insured IRI under a Commercial Umbrella Liability policy 

numbered CCC 446 16 01 (“Umbrella Policy”). Id. at 243. The relevant portions of the 

Umbrella Policy state:

We will pay on behalf of the insured the “ultimate net loss” which the 

insured is legally obligated to pay as damages in excess of the “underlying 

insurance” or for an “occurrence” covered by this policy which is either 

excluded or not covered by “underlying insurance” because of:

1. “Bodily injury” or “property damage” covered by this policy 

occurring during the policy period and caused by an 

“occurrence”; or

2. “Personal injury” or “advertising injury” covered by this 

policy committed during this policy period and caused by an 

“occurrence.”

Id. at 245. “Occurrence” is defined in the Umbrella Policy as:

a. An accident, including continuous or repeated exposure to 

substantially the same general harmful conditions, that results in 

“bodily injury” or “property damage.”

b. An offense that results in “personal injury” or “advertising injury.” 

All damages that arise from the same act, publication, or general 

conditions shall be deemed to arise from one “occurrence”. . . .
7

Id. at 256. The definitions for “personal injury” and “property damage” in the Umbrella 

Policy are the same as those in the CGL Policy.

On January 10, 2005, FLM filed a complaint against Cincinnati seeking a 

declaration that IRI has coverage under the CGL Policy and the Umbrella Policy

(collectively, “the Policies”) for the environmental liabilities asserted by IDEM and the 

City, as well as FLM’s own action against IRI arising from those claims.2 On March 3, 

2005, Cincinnati filed its answer and counterclaim, seeking a declaration that there was 

no coverage under the Policies for the claims. On May 12, 2005, Cincinnati filed a 

Third-party Complaint for Declaratory Judgment in order to bring Chrysler, IRI, IDEM, 

and the City as indispensable parties into the coverage action. On March 9, 2007, CSX 

filed a cross-complaint against IRI and FLM seeking trespass and nuisance damages 

related to the migration of foundry sand onto its property. 

On December 3, 2007, Cincinnati filed a motion for partial summary judgment, 

requesting the trial court to declare that there was no coverage under the Policies for the 

claims made by IDEM, the City, FLM, or Chrysler against IRI. Cincinnati’s motion 

specifically excluded the claims made by CSX. On February 11, 2008, FLM responded 

to Cincinnati’s motion and filed a cross-motion for summary judgment to determine that 

there was coverage for these claims, including the claims made by CSX, under both the 

“Property Damage Liability” coverage and the “Personal Injury Liability” coverage in the 

 

2 Prior to filing that complaint, FLM had filed a complaint against IRI for, among other things, 

damages from IRI’s activities on FLM’s Property, indemnification against IDEM’s, the City’s, and 

CSX’s claims against FLM, and trespass for leaving the foundry sand on FLM’s Property. Appellants’ 

App. at 1694-1707. 
8

Policies. On March 3, 2008, Chrysler opposed Cincinnati’s motion, joined FLM’s crossmotion and filed its own cross-motion for summary judgment. 

On November 6, 2008, the trial court granted partial summary judgment in favor 

of Cincinnati and denied FLM’s and Chrysler’s cross-motions for summary judgment. 

The trial court specifically stated:

Summary judgment is GRANTED to Cincinnati as against any insurance 

coverage obligation, duty of defense, indemnification, or payment owed to 

or on behalf of IRI . . . relating to the claims made by IDEM, the City . . ., 

FLM and/or [Chrysler], but this grant does not extend to alleged coverage 

obligations stemming from claims by CSX.

FLM’s cross-motion for summary judgment is DENIED.

Id. at 37. The trial court also denied Chrysler’s cross-motion for summary judgment as 

moot. FLM and Chrysler now appeal.3 After oral argument in this case, Cincinnati 

informed us that it had settled with CSX.4

 

3 Chrysler contends that, to the extent that CSX, FLM, and the other parties are holding it liable 

for the environmental violations and property damage caused by IRI, it is under a theory of vicarious 

liability for the acts or omissions of IRI in abandoning the sand. Because of the derivative nature of 

Chrysler’s claims, it asserts it is seeking the same determinations of coverage from Cincinnati as FLM, 

and the “same interpretation of Cincinnati’s policies is required for both FLM’s and Chrysler’s positions 

with regard to summary judgment in this case.” Appellant Chrysler’s Br. at 6. Therefore, we refer only 

to FLM’s arguments when addressing the arguments of the appellants.

4

In exchange for $300,000, CSX released Cincinnai, IRI, and others from liability for claims 

resulting from

A) the presence of the pile of spent foundry sand located on land presently owned by 

FLM, LLC (“FLM”) in Marion County, Indiana and/or B) foundry sand which was at one 

time deposited on land owned by FLM in Marion County, Indiana, (collectively, “the 

sand”) and/or C) the sand’s migration onto the adjacent CSX right-of-way. 

FLM, LLC v. The Cincinnati Ins. Co., No. 49A02-0902-CV-127 (Ind. Ct. App. May 23, 2012). In light of 

this settlement, it is not clear what cleanup costs actually remain. IDEM ordered the foundry sand to be 

completely removed. As was discussed at the oral argument in this case, cleaning up CSX’s property will 

“very likely” require cleaning up FLM’s property; otherwise, the sand would migrate back to CSX’s 

property and cause more damage.
9

DISCUSSION AND DECISION

On appeal from a grant of summary judgment, our standard of review is the same 

as that of the trial court. Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of Ind., Inc., 832 N.E.2d 

559, 562 (Ind. Ct. App. 2005). We stand in the shoes of the trial court and apply a de 

novo standard of review. Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d 690, 695 (Ind. Ct. 

App. 2006). Our review of a summary judgment motion is limited to those materials 

designated to the trial court. Ind. Trial Rule 56(H); Robson v. Tex. E. Corp., 833 N.E.2d 

461, 466 (Ind. Ct. App. 2005), trans. denied. Summary judgment is appropriate only 

where the designated evidence shows there are no genuine issues of material fact and the 

moving party is entitled to judgment as a matter of law. T.R. 56(C). For summary 

judgment purposes, a fact is “material” if it bears on the ultimate resolution of relevant 

issues. Wilcox Mfg., 832 N.E.2d at 562. We view the pleadings and designated materials 

in the light most favorable to the non-moving party. Id. Additionally, all facts and 

reasonable inferences from those facts are construed in favor of the nonmoving party. 

Troxel Equip. Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40 (Ind. Ct. App. 2005), 

trans. denied.

A trial court’s grant of summary judgment is clothed with a presumption of 

validity, and the party who lost in the trial court has the burden of demonstrating that the 

grant of summary judgment was erroneous. Cox, 848 N.E.2d at 695-96. Where a trial 

court enters specific findings and conclusions, they offer insight into the rationale for the 

trial court’s judgment and facilitate appellate review, but are not binding upon this court. 

Id. We will affirm upon any theory or basis supported by the designated materials. Id. 
10

When a trial court grants summary judgment, we carefully scrutinize that determination 

to ensure that a party was not improperly prevented from having his or her day in court. 

Id.

In this case, the parties filed cross-motions for summary judgment. However, the 

fact that cross-motions for summary judgment were made does not alter our standard of 

review. Mahan v. Am. Standard Ins. Co., 862 N.E.2d 669, 676 (Ind. Ct. App. 2007), 

trans. denied. “Instead, we must consider each motion separately to determine whether 

the moving party is entitled to judgment as a matter of law.” Id. 

The interpretation of an insurance policy is primarily a question of law and, 

therefore, is a question particularly suited for summary judgment. Id. (citing Lake States 

Ins. Co. v. Tech Tools, Inc., 743 N.E.2d 314, 318 (Ind. Ct. App. 2001)). “Where there is 

an ambiguity, policies are to be construed strictly against the insurer.” Lake States Ins., 

743 N.E.2d at 318. “An insurance contract is ambiguous when it is susceptible to more 

than one interpretation and reasonably intelligent persons would honestly differ as to its 

meaning.” Allstate Ins. Co. v. Bradtmueller, 715 N.E.2d 993, 997 (Ind. Ct. App. 1999), 

trans. denied. An ambiguity does not exist, however, merely because the parties favor a 

different interpretation. Mahan, 862 N.E.2d at 676. Where terms are unambiguous, they 

should be given their plain and ordinary meaning. Id. (citing Farmers Ins. Exch. v. 

Smith, 757 N.E.2d 145, 149 (Ind. Ct. App. 2001), trans. denied). A court should construe 

the language of a contract so as not to render any words, phrases, or terms ineffective or 

meaningless. Id.
11

FLM argues that Cincinnati’s personal injury coverage applies to its claims against 

IRI. FLM asserts that IRI wrongfully entered onto FLM’s Property by not removing the 

foundry sand after IRI stopped paying rent and violated the environmental compliance 

requirements in the lease. Specifically, FLM contends that IRI’s right to store foundry 

sand on FLM’s Property was contingent on IRI paying rent and obeying all 

environmental laws, and once IRI breached its lease contract, FLM claims that it no 

longer had a right to keep sand on its property and, therefore, committed a wrongful 

entry. Further, FLM argues that IRI’s failure to remove the foundry sand was an 

“invasion” of FLM’s “right to private occupancy” because the “right to private 

occupancy” includes the right to property that is free of tons of foundry sand belonging to 

another entity and left on your property.

Under the Policies, Cincinnati was obligated to pay “those sums that the insured 

becomes legally obligated to pay as damages because of ‘personal injury.’” Appellants’ 

App. at 146. Personal injury is defined as: “injury other than “bodily injury” arising out 

of one or more of the following offenses: . . . The wrongful eviction from, wrongful 

entry into, or invasion of the right of private occupancy of a room, dwelling, or premises 

that a person occupies by or on behalf of its owner, landlord, or lessor . . . .” Id. at 153. 

Personal injury coverage does not require an “occurrence” or “property damage,” but 

instead requires that injury arise from an enumerated “offense,” which could be either a 

“wrongful entry” or an “invasion of the right of private occupancy.” Id. at 153. 

In Travelers Indem. Co. v. Summit Corp. of Am., 715 N.E.2d 926 (Ind. Ct. App. 

1999), our court found that the policy provisions at issue in that case must be construed to 
12

cover the environmental damages alleged. Id. at 938. Summit was in the business of 

manufacturing and finishing metal parts and was ordered to clean up contaminants at 

various sites. Id. at 929. The claims against Summit involved contamination on land it 

owned, land owned by others to which Summit had sent waste, and groundwater 

contaminated at all those sites. Id. at 929-30, 937. A panel of this court interpreted 

policy language contained under personal injury coverage that was identical to the 

language in Cincinnati’s policies and found the language to be ambiguous due to the 

variety of meanings available for the terms in the policy and the disagreement among 

other courts regarding whether damages caused by pollutants could be covered under 

personal injury provisions.

5

 Id. at 937-38. This court therefore concluded that the 

personal injury provision at issue must be construed to cover the environmental damages 

of the suit. Id. at 938. 

The reasoning underlying the Summit decision applies with equal force here.

6

 

Cincinnati’s personal injury provision contained language identical to the language in the 

personal injury provision at issue in Summit, and just as the court in that case determined 

such language to be ambiguous, we likewise conclude that the language used in 

 

5

In Allstate Ins. Co. v. Dana Corp., 759 N.E.2d 1049, 1056-57 (Ind. 2001) (“Dana II”), our 

Supreme Court held that the terms “wrongful eviction” (on the facts of that case) and “invasion of the 

right of privacy” could not reasonably be construed to describe environmental contamination. The Court 

did not alter the ruling in Summit as to “wrongful entry” and did not address “invasion of the right of 

private occupancy.” Id. at 1057. 

6 Cincinnati contends that the claims of FLM for indemnity for the actions by IDEM and the City 

do not implicate personal injury because the actions do not claim wrongful entry or invasion of the right 

of private occupancy of FLM’s Property. Summit involved actions by the United States Environmental 

Protection Agency and other environmental agencies, ordering clean up of various sites. Therefore, 

because Summit is controlling here, the claims at issue in the present case are covered.
13

Cincinnati’s policies is ambiguous. Because the Policies are ambiguous, we must 

construe the language against the insurer and in favor of coverage. Id. at 937. 

FLM’s allegations here involved sand initially brought onto property owned by 

FLM legitimately under the lease, but later abandoned by IRI when it could no longer pay 

its rent. The sand abandoned by IRI interferes with the right of FLM to use and enjoy its 

property. As a result of such interference, the language used in the Policies may be 

reasonably construed to cover the abandonment. 

Cincinnati contends that, even if the abandoned sand’s presence on FLM’s 

Property constituted a wrongful entry or invasion of the right of private occupancy, the 

Policies’ personal injury coverage is limited, in relevant part, to IRI’s liability for: “The 

wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy 

of a room, dwelling, or premises that a person occupies by or on behalf of its owner, 

landlord, or lessor.” Appellants’ App. at 153 (emphasis added). Cincinnati asserts that 

the italicized language limits the coverage to only a wrongful entry or invasion of the 

right of private occupancy that is by or on behalf of its owner, landlord, or lessor. 

Therefore, Cincinnati claims that, even if IRI’s abandonment of the sand constituted a 

wrongful entry or invasion of the property, it was not committed by or on the behalf of 

the property’s owner, landlord, or lessor, here FLM. Since it is undisputed that the IRI 

was the tenant of FLM’s Property, Cincinnati asserts that no coverage was implicated.

Because this language was not considered in the Summit case, we must determine

whether such language is ambiguous. Under Cincinnati’s interpretation of the policy 

language, to qualify for coverage, either the wrongful entry or the invasion of the right to 
14

private occupancy, which was the abandonment of sand by IRI, must have been 

committed by or on behalf of owner, landlord, or lessor, FLM. FLM argues that without 

the word “committed,” it is unclear as to what the last clause “by or on behalf of its 

owner, landlord, or lessor” applies, and therefore ambiguity exists. FLM asserts that if 

Cincinnati meant to only cover wrongful entry or invasion when the entry was committed 

by or on behalf of the property’s owner, landlord, or lessor, then it should have drafted its 

policy in such a manner, and that, at most, Cincinnati’s interpretation of the of the 

Policies’ language is only one interpretation of the language, which makes it ambiguous. 

We agree.7

“To get at the thought or meaning expressed in a statute, a contract, or a 

constitution, the first resort, in all cases, is to the natural signification of the words, in the 

order of grammatical arrangement in which the framers of the instrument have placed 

them.” Lake Cnty. v. Rollins, 130 U.S. 662, 670 (1889). See also, Hamilton Cnty. Dep’t 

of Pub. Welfare v. Smith, 567 N.E.2d 165, 169 (Ind. Ct. App. 1991) (“In addition, where 

the meaning of a particular clause or phrase is in doubt, the court should examine the 

grammatical structure of the clause in order to ascertain its meaning.”). As a matter of 

strict grammatical construction, the descriptive words in a phrase should, in the absence 

of punctuation, be referred to their nearest antecedent, and had the intent been, by means 

of punctuation, to bring out a meaning which would refer these qualifying words to more 

than their immediate antecedent, a comma should have been inserted after said word. 

 

7 We note that the Third Circuit, in New Castle County, Delaware v. National Union Fire 

Insurance Co. of Pittsburgh, 174 F.3d 338 (3d Cir. 1999), interpreted policy language identical to the 

language at issue in this case and determined that such language was ambiguous. Although that case is 

not binding on this court, we find its reasoning to be persuasive and instructive in the present case.
15

First Nat’l Bank of Peoria v. Farmers’ & Merchants’ Nat’l Bank of Wabash, 171 Ind. 

323, 86 N.E. 417, 423 (1908). 

Applying this rule of construction to the policy language at issue, it is clear that 

“by or on the behalf of” modifies “that a person occupies,” the language that directly 

precedes it, and not the “wrongful eviction from, wrongful entry into, or invasion of the 

right of private occupancy” language. On this basis, we find that a different 

interpretation from the one proposed by Cincinnati to be entirely reasonable. Because 

this language in the Policies is subject to more than one reasonable interpretation, it is 

ambiguous, and must be construed against Cincinnati and in favor of coverage. 

We must next determine whether coverage is excluded because IRI incurred 

liability due to contractual assumption. Under the CGL Policy, the insurance does not 

apply to “personal injury”: “For which the insured had assumed liability in a contract or 

agreement. This exclusion does not apply to liability for damages that the insured would 

have in the absence of the contract or agreement.” Appellants’ App. at 146. Although 

IRI did assume liability for damages and actions made against FLM due to IRI’s 

negligent performance under the lease,8IRI was also a named party on the NOV issued 

by IDEM. Therefore, IRI may be held liable for the damages even in the absence of the 

contract or agreement, and the exclusion does not apply. The trial court erred in granting 

 

8 Cincinnati argues that both FLM and Chrysler failed to demonstrate that their respective 

contracts required IRI to indemnify them against IDEM’s and the City’s claims. IRI’s lease with FLM

contained a provision, where IRI agreed to indemnify FLM against all actions, claims, demands, costs, 

damages, or expenses of any kind that may be brought against FLM due to IRI’s negligent performance or 

failing to perform its obligations under the lease. Appellants’ App. at 53. Clause 54 of incorporated terms 

in Chrysler’s Purchasing General Terms and Conditions provided that IRI would assume all risk of 

damage to property or of bodily injury from any action, omission, or operation under the contract or in 

connection with the work. Id. at 2365-69. We therefore conclude that both FLM and Chrysler 

sufficiently demonstrated that IRI was required to indemnify them under their respective contracts.
16

summary judgment in favor of Cincinnati. We therefore reverse the trial court’s entry of 

summary judgment in favor of Cincinnati and remand with instruction to enter summary 

judgment in favor of FLM.

Reversed and remanded with instructions.

VAIDIK, J., concurs.

BRADFORD, J., concurs in result with separate opinion.
17

IN THE

COURT OF APPEALS OF INDIANA

FLM, LLC, )

)

Appellant/Plaintiff/Counterclaim )

Defendant, )

)

and )

)

DAIMLER CHRYSLER CORPORATION, )

n/k/a CHRYSLER LLC, )

)

Appellant/Third-Party Defendant/ )

Counterclaimant, )

)

vs. ) No. 49A02-0902-CV-127

)

THE CINCINNATI INSURANCE COMPANY, )

)

Appellee/Defendant/Third-Party Plaintiff/ )

Counterclaimant/Counterclaim Defendant. )

BRADFORD, Judge, concurring in result.

Although I agree with the majority that there is coverage here, I reach my 

conclusion by another route. In my view, while the “personal injury” provisions of the 

Policies do not provide for coverage, the “property damage” provisions do. 

Consequently, I concur in result. 
18

I. Personal Injury Provisions

I agree with the majority’s conclusion that the Policies’ definition of “personal 

injury” is ambiguous to the extent that it is unclear just what the phrase “by or on behalf 

of its owner, landlord, or lessor” is modifying. I do not believe, however, that this 

ambiguity leads to coverage in this case, because there is no evidence that IRI ever did 

anything on FLM’s behalf, much less any of the actions the phrase might be modifying. 

Even if we assume that the phrase is modifying “occupies,” there is no indication that the 

relationship between FLM and IRI ever went beyond that of lessor and lessee, and as the 

Indiana Supreme Court has noted, “no agency is implied between lessor and lessee.”

Hopkins v. Hudson, 107 Ind. 191, 196, 8 N.E. 91, 93 (1886). The Indiana Supreme Court 

has made it clear that, while ambiguities will be strictly construed against the insurer, “for 

ambiguity to confer coverage, the covered item must be somewhere within the circle of 

ambiguity.” Allstate Ins. Co. v. Dana Corp., 759 N.E.2d 1049, 1057 (Ind. 2001)

(emphasis supplied). Here, the circle of ambiguity is not large enough to encompass

IRI’s actions, because there is no evidence that IRI ever did anything on FLM’s behalf. I 

would therefore conclude that the personal injury provisions of the Policies do not 

provide for coverage. 

II. Property Damage Provisions

Because the majority has concluded that the Policies’ personal injury provisions 

provide coverage, it does not reach the question of whether the property damage 

provisions do, as FLM has also argued. In my view, the property damage provisions at 

issue do provide for coverage. The key question to be answered is whether the 
19

contamination of FLM’s land caused by the foundry sand constituted an “occurrence” 

within the scope of the Policies, and I conclude that it did. 

IRI’s GCL policy with Cincinnati defines “occurrence” as “an accident, including 

continuous or repeated exposure to substantially the same general harmful conditions.” 

Appellant’s App. p. 153. The Umbrella Policy defines “occurrence,” in part, as “[a]n 

accident, including continuous or repeated exposure to substantially the same general 

harmful conditions, that results in ‘bodily injury’ or ‘property damage.’” Appellant’s 

App. p. 256. The parties’ arguments focus on the meaning of the term “accident,” which

is defined in neither policy. The question is whether the term only covers IRI’s action of 

placing the foundry sand on FLM’s land or whether it also encompasses the unintended 

consequences of that action. Put another way, because IRI unquestionably intended to 

put the sand on FLM’s property, if the term “accident” does not also encompass 

unintended consequences of that non-accidental action, the property damage provisions 

would provide no coverage. Conversely, coverage would exist if the term “accident” 

encompassed unintended consequences of intentional actions. 

I believe that the Indiana Supreme Court’s holding in Auto-Owners Insurance Co. 

v. Harvey, 842 N.E.2d 1279 (Ind. 2006), controls here. In Harvey, the issue was whether 

a policy provided coverage for the harm caused by the insured, Toby Gearheart, who 

pushed his girlfriend Brandy Harvey into the Wabash River, where she drowned. Id. at 

1281. As here, the relevant policy provided coverage for an “occurrence,” which that 

policy defined as “an accident that results in bodily injury or property damage and 

includes, as one occurrence, all conditions or all continuous or repeated exposure to 
20

substantially the same general harmful conditions.” Harvey, 842 N.E.2d at 1283. Also 

as here, the policy did not define “accident.” Id. While it was undisputed that 

Geatheart’s push was intentional, it was not clear whether he intended Brandy to die. Id. 

at 1284-85. The question, then, was whether the push was an “accident” under the 

policy, because, while it was unquestionably intentional, it possibly had unintended 

consequences. 

The Harvey Court first noted that “Indiana case law has held that, ‘in the context 

of insurance coverage, an accident means an unexpected happening without an intention 

or design.’” Id. at 1283 (citing Terre Haute First Nat. v. Pac. Emp’rs Ins. Co., 634 

N.E.2d 1336, 1338 (Ind. Ct. App. 1993); Nat. Mut. Ins. Co. v. Eward, 517 N.E.2d 95, 100 

(Ind.Ct.App.1987)). The Court then resolved the issue as follows:

In the present case, the policy states that Auto-Owners will pay for 

its insured’s legal liability for “damages because of or arising out of bodily 

injury or property damage caused by an occurrence.” Under the facts of 

this case, however, the meaning and application of this provision is unclear. 

The language used by Auto-Owners can reasonably be understood in two 

different ways, depending on whether “occurrence” means Gearheart’s 

push or Brandy’s drowning. The policy language does not require that the 

“occurrence” or “accident” be limited to the actions of the insured. The 

claimed damages clearly arise out of Brandy’s death, and the coverage 

ambiguity thus is whether the death should be considered to have been 

caused by the event of Gearheart’s pushing or by the event of Brandy’s 

drowning. If the required “accident” refers to Gearheart’s push, then it is 

undisputed that it did not occur unexpectedly or unintentionally. If it 

applies to Brandy’s slip, fall, and drowning, however, it is not clear that the 

drowning was clearly unexpected and unintentional. It was obviously 

unexpected and unintentional from Brandy’s perspective, and possibly so 

from Gearheart’s point of view. We thus find the policy language 

ambiguous and must construe it against Auto-Owners, holding that the term 

“occurrence” applies to Brandy’s slip, fall, and drowning, and not to 

Gearheart’s push. 

Id. at 1284-85. 
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I believe that the Harvey Court’s analysis applies with equal force here, and would 

reach the same conclusion, i.e., that “accident” refers not only to the volitional act of the 

insured but also any unintended consequences of that act. In this case, this interpretation 

leads to the conclusion that there is coverage pursuant to the property damage provisions 

of the Policies.

9

 As in Harvey, the Policies do not require that the “accident” be an action 

of the insured, meaning that the policy here contains the same ambiguity as the policy in 

Harvey. In other words, “accident” could just as easily be referring to IRI’s actions as to 

the unintended consequences of those actions, and this ambiguity must be resolved in 

favor of coverage. Because I believe that coverage exists here pursuant to the property 

damage provisions of the Policies, I would remand with instructions to enter summary 

judgment in favor of FLM on that basis. 

 

9

 I note one procedural distinction with Harvey: in that case, there existed a genuine issue of 

material fact regarding whether Gearheart intended Brandy’s death, so the Court remanded for trial on the 

issue. Here, there does not seem to be any designated evidence that IRI intended for the foundry sand to 

contaminate FLM’s property. Therefore, in my view there would be no need for trial on the issue of 

coverage, as there was in Harvey.