Court of Appeals of Indiana | Memorandum Decision 73A05-1606-PL-1255 | January 31, 2017 Page 1 of 9

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 APPELLANTS

R. Brock Jordan

Densborn Blachly LLP

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Stephen C. Wheeler

Smith Fisher Maas Howard & Lloyd PC

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Melissa Freeman; Melissa 

Freeman Realty, Inc.; and Realty 

Group-Freeman, LLC d/b/a 

Prudential Indiana Realty Group,

Appellants-Defendants,

v.

Property-Owners Insurance 

Company,

Appellee-Plaintiff.

January 31, 2017

Court of Appeals Case No.

73A05-1606-PL-1255

Appeal from the Shelby Circuit 

Court.

The Honorable Charles D. 

O’Connor, Judge.

Cause No. 73C01-1405-PL-14

Shepard, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 73A05-1606-PL-1255 | January 31, 2017 Page 2 of 9

[1] A prospective buyer was injured while touring a home, and he sued the listing 

real estate company for damages. The real estate company’s insurer sought a 

declaratory judgment asserting that its policy did not cover damages arising 

from the accident. The trial court granted the insurer summary judgment. We 

affirm. 

Facts and Procedural History

[2] Gerald Powers sustained injuries while being shown a residential property listed 

for sale by Prudential Indiana Realty Group (“Prudential”). Gerald and his 

wife (collectively “the Powerses”) filed suit for negligence, naming Prudential,

and the agent who did the showing, and a host of other defendants.

[3] Subsequently, Property-Owners Insurance Company, Prudential’s liability 

insurer, filed this declaratory judgment action seeking a determination that, 

based upon the “Limitation of Real Estate Operations Endorsement” 

(“Endorsement”) to the policy in question, Property-Owners has no duty to 

provide coverage, defend, or indemnify Prudential for any claims brought by 

the Powerses.1

 

1 As we observed when resolving an earlier appeal in this case, besides the Powerses, “Property-Owners 

named: U.S. Bank National Association, as Trustee Under the Securitization Servicing Agreement dated as 

of July 1, 2005 Structured Asset Securities Corporation, Structured Asset Investment Loan Trust Mortgage 

Pass-Through Certificates, Series 2005-HE2; Melissa Freeman Realty, Inc.; Realty Group-Freeman, LLC 

d/b/a Prudential Indiana Realty Group; Altisource Solutions, Inc.; Altisource Fulfillment Operations, Inc.; 

Altisource; RealHome Services and Solutions, Inc., d/b/a Altisource Homes; Altisource Portfolio Solutions 

S.A.; Altisource Portfolio Solutions, Inc.; Altisource U.S. Holdings, Inc.; Altisource Holdings, LLC; Real 

Estate Servicing Solutions, LLC; Real Estate Servicing Solutions, Inc.; Altisource Portfolio Solutions 

S.A.R.L.; Ocwen Loan Servicing, LLC; Ocwen Financial Corporation; Rita Williams; Melissa Freeman; 
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[4] The Powerses moved for judgment on the pleadings, asserting the Endorsement 

was inapplicable to the property where Gerald was injured and thus could not 

be a basis for denying coverage under Prudential’s Businessowners Policy. The 

trial court agreed and entered judgment against Property-Owners. PropertyOwners appealed that ruling, and a panel of this Court reversed. See PropertyOwners Ins. Co. v. Powers, et al., No. 73A05-1501-PL-2 (Ind. Ct. App. July 22, 

2015).

[5] Property-Owners then moved for summary judgment, which the court granted 

following a hearing. Melissa Freeman, Melissa Freeman Realty, Inc., and 

Prudential (collectively “the Prudential Defendants”) now appeal.

Issue

[6] The Prudential Defendants present one issue for our review: whether the court 

erred by granting summary judgment in favor of Property-Owners.

Discussion and Decision

[7] On appeal from a grant of summary judgment, our standard of review is similar 

to that of the trial court: whether there exists a genuine issue of material fact 

and whether the moving party is entitled to judgment as a matter of law. City of 

 

David Craig; Usher & Associates, Inc.; and Field Connections, LLC.” Property-Owners Ins. Co. v. Powers, et 

al., No. 73A05-1501-PL-2, slip op. p. 3 n.1 (Ind. Ct. App. July 22, 2015). Although Prudential, Melissa 

Freeman, and Melissa Freeman Realty, Inc. are the only defendants who have appeared and filed a brief in 

this appeal, pursuant to Indiana Appellate Rule 17(A), “[a] party of record in the trial court . . . shall be a 

party on appeal.”
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Indianapolis v. Cox, 20 N.E.3d 201 (Ind. Ct. App. 2014), trans. denied; see also Ind. 

Trial Rule 56(C). Appellate review of a summary judgment motion is limited 

to those materials designated to the trial court. Sheehan Const. Co, Inc. v. Cont’l 

Cas. Co., 938 N.E.2d 685 (Ind. 2010). All facts and reasonable inferences drawn 

from those facts are construed in favor of the non-movant. Id. 

[8] Further, the 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. AutoOwners Ins. Co. v. Benko, 964 N.E.2d 886 (Ind. Ct. App. 2012), trans. denied.

[9] At the center of this dispute is the Endorsement contained in the 

Businessowners Policy that Property-Owners issued to Prudential. It provides:

THIS ENDORSEMENT MODIFIES INSURANCE 

PROVIDED UNDER THE BUSINESSOWNERS POLICY

It is agreed that with respect to any real estate operation, the 

insurance provided under the Businessowners Liability Coverage 

Form applies only to “bodily injury,” “property damage,” 

“personal injury,” and “advertising injury” arising out of:

1. that part of a premises used by you for general office 

purposes; and

2. a premises:

a. which you do not own, operate, rent or manage;

b. which is not in your care, custody or control; or

c. for which you do not act as an agent for rent

collection or in a supervisory capacity;

if such premises is listed with you for sale or rental.

All other terms and conditions of the policy apply.
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Appellants’ App. Vol. 3, p. 175. 

[10] In addition, Prudential broker-salesperson Rita Williams had signed a listing 

agreement for the property where Gerald Powers was injured. It included the 

following provision:

3. Broker agrees to assume the care, custody and management of 

the property, including but not limited to performing the 

following:

A. Input listing in appropriate MLS;

B. Install signage;

C. Answer calls/emails from buyers/agents;

D. Conduct open houses when necessary;

E. To inspect the property at least once each week and 

take reasonable and prudent action to prevent any damage 

to the property including, but not limited to, damage 

caused by fire, vandalism, and weather conditions, and 

notify Seller immediately by telephone in the event of any 

emergency, code violation or damage related to the 

property; and

F. To complete and submit to Altisource Homes, on a 

monthly basis, a Property Status Report, in the form 

attached hereto. Such report shall include information as 

to the classified and display advertising conducted by 

Broker, other sales promotions and results, as well as 

showings to prospective purchasers and their comments, 

new comp, sales and listings and Broker’s 

recommendations on marketing strategy. Altisource 

Homes shall in turn submit the Property Status Report to 

Seller.

Id. at 99-100. 
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[11] The Prudential Defendants first contend the court erred by determining that 

Prudential’s Businessowners Policy does not afford coverage to Prudential in 

this case because the Endorsement is ambiguous, specifically the phrase “care, 

custody or control” in section 2.b.

[12] The interpretation of an insurance policy is generally a question of law 

appropriate for summary judgment. Liberty Mut. Ins. Co. v. Michigan Mut. Ins. 

Co., 891 N.E.2d 99 (Ind. Ct. App. 2008). The terms of an insurance policy are 

interpreted using the same rules of interpretation applied to other contracts. 

Benko, 964 N.E.2d 886. If the language of the policy is clear and unambiguous, 

it must be given its plain and ordinary meaning. Zeller v. AAA Ins. Co., 40 

N.E.3d 958 (Ind. Ct. App. 2015). Conversely, where an ambiguity exists, the 

policy is construed strictly against the insurer, and the terms of the policy are

interpreted from the perspective of an ordinary policyholder. Benko, 964 

N.E.2d 886. An ambiguity is not necessarily established simply because a 

controversy exists and the parties assert contrary interpretations of the terms of 

the policy. Haag v. Castro, 959 N.E.2d 819 (Ind. 2012).

[13] Although the Prudential Defendants claim that the Endorsement is ambiguous 

because it is “silent regarding whether actual management or control is 

required, or alternatively whether a contractual obligation is sufficient,” we find

the language to be straightforward. Appellants’ Br. p. 11. The Endorsement 

requires only that the insured have the care, custody or control of the premises; 

it makes no statement about whether one actually fulfills its obligation of care, 

custody, or control, or how one acquires that care, custody, or control. Thus, 
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we see nothing in the terms of the Endorsement to indicate that the phrase 

“care, custody or control” is meant to have anything other than a plain and 

ordinary meaning. 

[14] In discerning the meaning of “care, custody or control” as used in an insurance 

policy, Justice David observed for our Supreme Court that the dictionary 

definitions seem plain enough:

Webster’s defines “care” in this context as “[t]he function of 

watching, guarding, or overseeing.” Webster’s II New College 

Dictionary 168 (1995). “Custody” is defined as “[t]he act or right 

of guarding, esp. such a right granted by a court.” Id. at 280.

“Control” means “[t]o exercise authority or influence over” or 

“[t]o hold in restraint.” Id. at 246. Black’s Law Dictionary is 

similar, defining “care” as “[u]nder the law of negligence or of 

obligations, the conduct demanded of a person in a given 

situation,” Black’s Law Dictionary 240 (9th ed. 2009), defining 

“custody” as “[t]he care and control of a thing or person for 

inspection, preservation, or security,” id. at 441, and “control” as 

“[t]o exercise power or influence over,” id. at 378.

Holiday Hosp. Franchising, Inc. v. AMCO Ins. Co., 983 N.E.2d 574, 579 (Ind. 

2013). The Court found these definitions to be reasonable and noted that not 

all three terms needed to be satisfied for coverage to be excluded because the 

policy listed the terms in the disjunctive. See id.
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[15] Here, by virtue of the terms of the listing contract signed by Williams, the 

residential property was in the “care,” “custody,” or “control” of Prudential.2

 

Prudential, through Williams, agreed and was required to inspect the property 

at least once a week and to take action to prevent damage to the property. 

Additionally, Prudential was to notify the seller immediately in the event of any 

emergency, code violation, or damage. We see no ambiguity in the 

Endorsement.

[16] The Prudential Defendants also argue the court erred by granting summary 

judgment because Prudential’s obligation under the listing contract was

modified by its conduct such that it did not actually exercise care, custody, and

control over the listed property. Essentially, the Prudential Defendants claim 

that Prudential agreed to and is contractually obligated to the care, custody, and 

control of the property under the listing contract, which would ordinarily mean 

no coverage under Prudential’s insurance policy, but because it did not fulfill its

contractual obligations under the listing contract, it is still covered under the 

insurance policy (i.e., Property-Owners will have to pay for Prudential’s failure 

to fulfill its obligations). 

[17] Property-Owners says this argument is waived because the Prudential 

Defendants did not raise it in the trial court. Our review of the materials

available on appeal discloses that the Prudential Defendants neither presented 

 

2 Property-Owners alleges and the Prudential Defendants do not dispute that Prudential required all listings 

of its broker-salespersons to be the property of Prudential and be listed in Prudential’s name. 
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this argument in their brief to the trial court nor raised it at the summary 

judgment hearing. Thus, as the Prudential Defendants have introduced this 

argument for the first time on appeal, the argument is waived. See I.A.E., Inc. v. 

Hall, 49 N.E.3d 138 (Ind. Ct. App. 2015) (stating that, in general, party waives 

appellate review of issue or argument that was not presented to trial court), 

trans. denied.

Conclusion

[18] The trial court did not err by granting summary judgment for Property-Owners.

[19] Affirmed.

Crone, J., and Altice, J., concur.