FOR PUBLICATION

ATTORNEYS FOR APPELLANTS: ATTORNEY FOR APPELLEE,

Beelman Truck Company:

PATRICK A. SHOULDERS

JEAN M. BLANTON TODD A. CROFTCHIK

Ziemer Stayman Weitzel & Shoulders Seipp & Flick, LLP

Evansville, Indiana Lake Mary, Florida

KARL L. MULVANEY ATTORNEYS FOR APPELLEE,

NANA QUAY-SMITH North American Capacity

Bingham Greenbaum Doll, LLP Insurance Company:

Indianapolis, Indiana

JULIA BLACKWELL GELINAS

MAGGIE L. SMITH

DEAN R, BRACKENRIDGE

CARRIE G. DOEHRMANN

Frost Brown Todd, LLC

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

PEABODY ENERGY CORPORATION, )

PEABODY COAL COMPANY, LLC, and )

BLACK BEAUTY COAL COMPANY, )

)

Appellants-Defendants and )

Third-Party Plaintiffs, )

)

vs. ) No. 14A01-1112-CT-555

)

RICHARD F. ROARK, )

)

Appellee-Plaintiff,
2

and, )

)

BEELMAN TRUCK COMPANY, )

)

Appellee-Third-Party Defendant, )

)

and, )

)

NORTH AMERICAN CAPACITY INSURANCE )

COMPANY, )

)

Appellee-Third-Party Counterclaim )

Plaintiff and Third-Party Defendant. )

APPEAL FROM THE DAVIESS CIRCUIT COURT

The Honorable Gregory A. Smith, Judge

Cause No. 14C01-0705-CT-194

August 30. 2012

OPINION - FOR PUBLICATION

BARNES, Judge

Case Summary

Peabody Energy Corporation, Peabody Coal Company, LLC, and Black Beauty 

Coal Company (collectively, “Peabody”) appeal the trial court’s grant of summary 

judgment in favor of Beelman Truck Company (“Beelman”) and North American 

Capacity Insurance Company (“NAC”). We affirm in part, reverse in part, and remand.

Issue

The dispositive issue we address is whether Peabody is an additional insured under 

an insurance policy issued by NAC.
3

Facts

Peabody owns property in Daviess County where it conducts mining operations, 

and Beelman is a trucking company. Beelman and Peabody entered into a Master 

Performance Agreement (“MPA”), which became effective on April 5, 2005, and 

continued for an initial term of one year. The MPA defined Peabody as “Owner” and 

Beelman as “Contractor.” App. p. 280. The MPA provided in part:

18. INDEMNITY AND INSURANCE.

A. Contractor agrees to indemnify, defend, and 

hold harmless Owner, its parent, subsidiaries, affiliates 

and related companies and the officers, directors, 

shareholders and employees of such companies 

(collectively “Owner”) against any and all claims, 

damages, losses and expenses, including attorney’s 

fees and other legal expenses, by reason of liability 

imposed or claimed to be imposed by law for damage 

because of bodily injury (including death) or on 

account of damage to property, sustained by any 

person or persons, arising out of or in consequence of 

the performance of the work called for by the Contract 

whether or not such bodily injuries, death, or damage 

to property arise or are claimed to have arisen in whole 

or in part out of the negligence or any other grounds of 

legal liability, including violation of any duty imposed 

by a statute, or ordinance or regulation, on the part of 

Contractor, the subcontractors, and the employees or 

agents of Contractor and the subcontractor (but 

excluding however, any liability caused by the sole

negligence or willful misconduct of employees or 

agents of Owner).[1]

B. Contractor shall obtain and continue in force, 

during the term of the Contract at its own expense, the 

following insurance coverages:

 

1

 The strikethrough modifications were handwritten and initialed.
4

1. Workers’ Compensation and 

Occupational Disease Disability insurance as 

required by the laws of the state wherein the 

work is to be performed.

2. Employer’s Liability insurance with 

limits of $500,000 each occurrence, unless the

laws of the state in which the work is to be 

performed precludes an independent right of 

action by an employee against an employer 

under common law.

3. Comprehensive Automobile Liability 

insurance with limits of $1,000,000 Bodily 

injury and Property Damage combined single 

limit.

4. Comprehensive General Liability and 

Property Damage insurance including 

Operations, Protective, Products/Completed 

Operations, Broad Form Property Damage, and 

Contractual Liability coverages with limits of 

$1,000,000 Bodily injury and Property Damage 

combined single limit.

C. All insurance policies must contain an 

unqualified provision that the insurance carrier will 

give Owner 30 days prior notice in writing of any 

cancellation, change or lapse in such policy(s).

D. All insurance policies shall name Owner, its 

parent, subsidiaries, affiliates and related companies, 

as additional insureds with respect to losses or claims 

arising out of, or directly or indirectly related to, the 

performance of this Contract.

E. The parties hereto acknowledge that 

Contractor’s insurance shall be the primary coverage 

under the Contract.

F. Prior to commencement of any work hereunder, 

Contractor shall furnish to Owner (in form satisfactory 

to Owner) a Certificate of Insurance showing that the 
5

requirements of this Paragraph 17 [sic] have been 

satisfied.

Id. at 281. 

Beelman had a commercial general liability insurance policy (“the Policy”) with 

NAC, which was effective from December 1, 2004, to December 1, 2005. The Policy 

contained an additional insured endorsement that provided:

This endorsement modifies insurance provided under the 

following:

COMMERCIAL GENERAL LIABILITY 

COVERAGE PART.

SCHEDULE

Name of Person or Organization:

Any person or organization to which you are 

obligated by virtue of written contract to

provide insurance such as is afforded by this 

policy, but only with respect to (1) occurrences 

taking place after such written contract has been 

executed and (2) occurrences resulting from 

work performed by you during the policy 

period.

(if no entry appears above, information required to complete 

this endorsement will be shown in the Declarations as 

applicable to this endorsement.)

WHO IS AN INSURED (Section II) is amended to include as 

an insured the person or organization shown in the Schedule 

as an insured but only with respect to liability arising out of 

your operations or premises owned by or rented to you.

Id. at 209 (emphasis added). A certificate of liability insurance was issued to Peabody 

referencing the Policy by number. The certificate named Peabody as the certificate 
6

holder and provided, “Certificate holder is an additional insured with respect to the auto 

and general liability.” Id. at 289. 

Richard Roark was employed by Beelman as a truck driver. On June 22, 2005, 

while working for Beelman, Roark delivered a load of ash from a power plant to 

Peabody’s mine. Roark backed the Beelman truck into a spot at the mine to dump the

load of ash. Roark got out of the truck to release the air brakes, which were controlled by 

switches on the side of the trailer. As he walked toward the middle of the trailer to 

release the switches, the ground gave away, and Roark went down into the ground past 

his knee.

On May 29, 2007, Roark filed a complaint against Peabody alleging that its 

negligence caused injuries to his left foot. On March 25, 2009, Peabody demanded 

coverage from NAC. In response, NAC determined that “Peabody is only an additional 

insured with respect to liability arising out of Beelman’s operations or premises owned 

by or rented to Beelman.” Id. at 182. NAC concluded that Roark’s claim did not arise 

“from Beelman’s work” and, therefore, NAC had no duty to defend or indemnify 

Peabody. Id. 

Peabody eventually filed a third-party complaint in Roark’s lawsuit requesting 

indemnification from Beelman, alleging that Beelman had breached the MPA, and 

seeking declaratory judgment regarding NAC’s obligation to provide coverage based on 

the Policy. Beelman and NAC denied the allegations, and NAC sought a declaratory 

judgment against Peabody. Peabody filed a motion for partial summary judgment against 

NAC. NAC and Beelman also filed motions for summary judgment against Peabody. 
7

After the matter was fully briefed and a hearing was conducted, the trial court entered 

final judgment in favor of Beelman and NAC and against Peabody. The trial court 

summarized its twenty-five pages of findings and conclusions as follows:

A. The MPA excludes, [sic] and Beelman Truck Co. 

therefore has no duty to indemnify, defend or hold Black 

Beauty harmless when the sole allegations of negligence are 

against Black Beauty. The fact that Black Beauty will defend 

those allegations by alleging that Plaintiff was comparatively 

negligent does not operate to change that outcome.

B. The only potential risk that needs to be insured against 

in this case is Black Beauty’s own negligent maintenance of 

its own premises. That is the only negligence alleged in the 

Plaintiff’s Complaint and it is the only negligence for which 

Black Beauty could be held legally responsible. Paragraph 18 

of the MPA does not create or impose a contractual obligation 

on Beelman, to insure against that specific risk, i.e. the 

requisite meeting of the minds was lacking.

C. Because Beelman had no contractual duty to insure 

Black Beauty against claims/losses that Black Beauty 

negligently maintained its own premises, the insurance policy 

that is the subject of the Motions for Summary Judgment filed 

by North American Capacity and Black Beauty is not 

triggered. Because the MPA does not trigger Beelman’s 

North American Capacity insurance policy, Black Beauty’s 

claims against North American [C]apacity fail.

D. This case will return to its original procedural posture, 

Black Beauty defending itself against allegations that it 

negligently maintained premises that it owned and that were 

under its sole control.

Id. at 40. Peabody now appeals.

Analysis

Peabody argues that the trial court improperly granted NAC’s and Beelman’s 

motions for summary judgment and denied its motion for summary judgment. “We 
8

review an appeal of a trial court’s ruling on a motion for summary judgment using the 

same standard applicable to the trial court.” Perdue v. Gargano, 964 N.E.2d 825, 831

(Ind. 2012). “Therefore, summary judgment is appropriate only if the designated 

evidence reveals ‘no genuine issue as to any material fact and that the moving party is 

entitled to a judgment as a matter of law.’” Id. (quoting Ind. Trial Rule 56(C)). Our

review of summary judgment is limited to evidence designated to the trial court. Id.

(citing T.R. 56(H)). All facts and reasonable inferences drawn from the evidence 

designated by the parties is construed in a light most favorable to the non-moving party, 

and we do not defer to the trial court’s legal determinations. Id. 

Peabody argues that it is entitled to coverage from NAC as an additional insured 

under the Policy. Alternatively, Peabody argues that, if it is not entitled to coverage 

under the Policy, Beelman has breached the MPA by failing to provide the insurance 

described in Section 18(D).2 Thus, we must first determine whether the Policy provides 

coverage to Peabody under these circumstances.

“Insurance policies are governed by the same rules of construction as other 

contracts, and their interpretation is a question of law.” Masten v. AMCO Ins. Co., 953 

N.E.2d 566, 569 (Ind. Ct. App. 2011), trans. denied. When interpreting an insurance 

policy, our goal is to ascertain and enforce the parties’ intent as manifested in the policy, 

and we construe the policy as a whole and consider all of the provisions of the policy and 

not just individual words, phrases, or paragraphs. Id. “Because we construe insurance 

 

2

 Peabody does not appeal the entry of judgment on its claim for indemnification against Beelman 

pursuant to Section 18(A) of the MPA.
9

policies as a whole in each case, prior cases that focus upon similar or identical clauses or 

exclusions are not necessarily determinative of later cases because the insurance policies 

as a whole may differ.” Id.

The relevant portion of the Policy’s additional insured endorsement provides:

WHO IS AN INSURED (Section II) is amended to include as 

an insured the person or organization shown in the Schedule 

as an insured but only with respect to liability arising out of 

your operations or premises owned by or rented to you.

App. p. 209 (emphasis added). In asserting that Peabody’s liability does not arise out of 

Beelman’s operations, NAC relies on Liberty Mutual Ins. Co. v. Michigan Mutual Ins.

Co., 891 N.E.2d 99 (Ind. Ct. App. 2008), a case interpreting an additional insured 

endorsement. In that case, Linda Swann, an employee of Trilithic, slipped and fell on a 

snow and ice covered pathway leading from the employee parking lot to a door at the 

back of the Triltihic facility, which Trilithic leased from Duke. Under the lease, it was 

Duke’s responsibility to maintain common areas including the pathway where Swann 

was injured. In accordance with the lease, Trilithic obtained a commercial general 

liability policy from Michigan Mutual in which Trilithic was the named insured and an 

endorsement designated Duke as an additional insured. The additional insured 

endorsement provided:

WHO IS AN INSURED (Section II) is amended to include as 

an insured the person or organization shown in the Schedule 

but only with respect to liability arising out of the ownership, 

maintenance or use of that part of the premises leased to you 

and shown in the Schedule[.]
10

Liberty Mutual, 891 N.E.2d at 100. Swann and her husband sued Duke, and Duke 

tendered the defense of the action to Michigan Mutual pursuant to the additional insured 

endorsement. Michigan Mutual declined to defend or indemnify Duke. Litigation 

ensued between Liberty Mutual, Duke’s insurer, and Michigan Mutual, and the trial court 

eventually declared that Michigan Mutual had no obligation to defend or indemnify Duke 

against the Swanns’ claims. 

On appeal, we noted that there were no Indiana cases interpreting the boilerplate 

additional insured endorsement at issue. Id. at 103. After considering how other 

jurisdictions had interpreted such provisions, we rejected a broad interpretation of the 

provision and agreed “that more than an incidental connection with the leased premises is 

required to obtain coverage under an additional insured endorsement.”

3

 Id. at 104. We 

observed:

One of the primary functions of an additional insured 

endorsement in the landlord-tenant context is to protect the 

landlord from vicarious liability for acts of its tenant on the 

leased premises. Northbrook Ins. Co. v. American States Ins. 

Co., 495 N.W.2d 450. “The additional insured endorsements 

in these settings are meant to provide specialized protection 

 

3

 The Liberty Mutual court did not reference Travelers Cas. & Sur. Co. v. Elkins Constructors, Inc., 2000 

WL 724006 (S.D. Ind. 2000), which interpreted additional insured provisions similar to the one at issue 

today. The Elkins court observed:

Although the court cannot locate any reported opinions discussing the 

construction of “additional insured” provisions under Indiana law, the 

majority of courts to have considered the issue construe such provisions 

(which rely on language very similar to, or identical to, the language 

used in the additional insured provisions in the [relevant] policies) 

broadly, encompassing coverage to extend to liability beyond merely the 

additional insured’s vicarious liability for the actions of the named 

insured.

Elkins, 2000 WL 724006 at 2 (footnote omitted). 
11

rather than all-encompassing coverage.” United States Fid. & 

Guar. v. Drazic, 877 S.W.2d at 143.

Id. 

In analyzing the connection between the accident and the leased premises, we 

considered that the accident occurred in a common area outside of the leased premises 

and under Duke’s control, that there was no physical connection between the accident 

and the leased premises or Trilithic’s business operations thereon, and that there was no 

allegation that the ice and snow on which Swann slipped was caused by the leased 

premises, was connected to work done on the leased premises, or had any other 

significant connection with the leased premises. Id. at 105. We observed that the 

accident arose out of Duke’s own failure to maintain the pathway from the parking lot to 

the employee entrance and that “[t]he only way Swann’s fall was even remotely related to 

the leased premises was due to the fact Swann was on her way to work.” Id. We deemed 

this “isolated connection” to be insufficient to bring the accident within the coverage of 

the policy under the additional insured endorsement and held that Michigan Mutual had 

no duty to defend or indemnify Duke. Id.

Even if we agree with Liberty Mutual that an expansive interpretation of an

additional insured endorsement such as the one here should be rejected, Liberty Mutual

does not resolve the question of whether Peabody is entitled to coverage under the Policy. 

The policy language and facts of Liberty Mutual are easily distinguishable from the 

policy language and circumstances before us today. 
12

First, although both cases apparently involve negligence claims based on premises 

liability theories, the relevant policy language is different. At issue here is whether the 

liability arises “out of [Beelman’s] operations,” not whether the liability arises out of 

“ownership, maintenance or use of” a leased premises, which was at issue in Liberty 

Mutual. App. p. 209; Liberty Mutual, 891 N.E.2d at 100. Thus, although Liberty 

Mutual’s focus on the “connection with the leased premises” may be appropriate in the 

landlord-tenant context, is of limited application here. Id. at 104. 

In that regard, NAC’s suggestion that Peabody’s potential liability arises out of 

Peabody’s own alleged negligence in maintaining its own property misses the mark 

because it does not resolve the question of whether Peabody’s potential liability arises out 

of Beelman’s operations. NAC also asserts that there is no contention that Peabody’s 

liability “arose out of the actions of” Beelman and that Peabody does not face “liability 

for Beelman’s operations.” Appellee NAC’s Brief p. 14. Because these assertions are 

more narrowly worded than the actual language of the Policy, which refers to “liability 

arising out of [Beelman’s] operations,” they are of little help in determining whether 

Peabody is an additional insured under the Policy. App. p. 209. 

Aside from the differences in the policy language, Liberty Mutual is also factually 

distinguishable because Roark was not on Peabody’s property as a means to an end—to 

get to work—as Swann was. Instead, Roark was at Peabody’s mine as part of his 

employment as a truck driver for Beelman.4 According to Roark’s complaint, while 

 

4

 In its brief, Beelman does not dispute that Roark was at the mine “because of his employment with 

Beelman.” Appellee Beelman’s Br. p. 5. 
13

working for Beelman, he delivered a load of ash from a power plant to the mine, where 

he stepped in a hole and was injured. NAC’s letter denying coverage provides, “On June 

22, 2005, Mr. Roark allegedly delivered a load of ash from the Petersburg Power Plant to 

the defendants’ mine. During his delivery, Mr. Roark allegedly stepped in a hole and 

suffered bodily injuries.” Id. at 180. In his deposition, Roark stated that he was directed 

to drive the truck to “the high wall.” Id. at 607. According to Roark, he backed the truck 

toward that area and then secured the truck. Roark described that process of securing the 

truck and how he was injured as follows:

Lock the brakes on it, trailer and the truck, and you get out. 

And all the Beelman trucks had outside switches which 

released the air bags on the truck so it would be solid when 

you raised it up in the air, you release the air brakes. You got 

switches on the side of the trailer. That’s where I’m walking 

when I step, when the ground gives away. I’m walking back 

to the middle ways of the trailer to release those switches, and 

the ground give way, and I went down into the ground up past 

my knee.

Id. at 608. 

The parties do not direct us to any designated evidence suggesting that Roark was 

injured while acting outside the scope of his employment or while undertaking a task 

unrelated to Beelman’s operations when he was injured. Cf. Davis v. LTV Steel, Co., 

716 N.E.2d 766 (Ohio App. 1998) (concluding that LTV was not an additional insured 

“with respect to liability arising out of [Shafer’s] operations” for injuries incurred by 

Shafer employees who were injured on LTV’s premises while performing a task “not 

contemplated as part of Shafer’s duties pursuant to its contract with LTV.”). Unlike in 

Liberty Mutual, the connection between Roark’s presence at the mine and his injuries 
14

was not “incidental” or “isolated;” instead, Roark’s injuries were directly related to his 

work as a truck driver for Beelman. Liberty Mutual, 891 N.E.2d at 104, 105. Regardless 

of whether Roark was injured because of Peabody’s sole negligence, the designated 

evidence shows that Roark’s injuries—the basis of Peabody’s potential liability—arose 

out of Beelman’s operations. Thus, Peabody is an additional insured under the Policy. 

As such, the trial erroneously entered summary judgment in favor of NAC and 

against Peabody regardless of the language of the MPA. Because of our conclusion that 

Peabody is an additional insured under the Policy, we necessarily conclude that Beelman 

did not breach the MPA. Therefore, the trial court properly granted Beelman’s motion 

for summary judgment.

Conclusion

Because Roark’s injuries arose out of Beelman’s operations, Peabody is an 

additional insured under the Policy. As such, Peabody, not NAC, is entitled to summary 

judgment on the declaratory judgment action. Further, because Peabody is an additional 

insured under the Policy, Beelman did not breach the MPA. Thus, summary judgment in 

favor of Beelman was appropriate. We affirm in part, reverse in part, and remand.

Affirmed in part, reversed in part, and remanded.

VAIDIK, J., and MATHIAS, J., concur.