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

November 30, 2012

OPINION ON REHEARING - FOR PUBLICATION

BARNES, Judge

North American Capacity Insurance Company (“NAC”) petitions for rehearing 

following our opinion in Peabody Energy Corp. v. Roark, 973 N.E.2d 636 (Ind. Ct. 

App. 2012). We grant NAC’s petition for rehearing; however, we affirm our opinion in 

all regards. 

In our original opinion, we were asked to determine whether Peabody Energy 

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

(collectively, “Peabody”) were additional insureds under an insurance policy (“the 

Policy”) issued by NAC to Beelman Truck Company (“Beelman”). After considering 

the language of the Policy’s additional insured endorsement and the designated 
3

evidence, we concluded that, because Richard Roark’s injuries arose out of Beelman’s 

operations, Peabody was an additional insured under the Policy. Peabody, 973 N.E.2d 

at 642. 

In its petition for rehearing, NAC asserts that, although our opinion refers to 

“coverage,”1the opinion does not explain whether NAC had a duty to indemnify or only 

a duty to defend. NAC claims that an open-ended obligation by NAC to indemnify 

Peabody would be premature because the underlying case against Peabody is still 

ongoing and it has not been determined whether Peabody is liable to Roark for any 

damages. NAC asks us to hold that it only owes a duty to defend and to reserve the 

determination regarding its duty to indemnify until the underlying case against Peabody 

has been resolved.

Although NAC’s appellee’s brief acknowledged the general principle that an 

insurer’s duty to defend is broader than its duty to indemnify, NAC made no argument 

distinguishing between its potential obligation to defend and its potential obligation to 

indemnify Peabody based on the facts of the case or the language of the Policy. Nor did 

NAC argue that it would be premature to determine whether it owed a duty to 

indemnify at this stage in the proceedings. Instead, throughout its brief, NAC 

maintained that Peabody was “not entitled to defense or indemnity” from NAC because 

Peabody was not an additional insured under the Policy. NAC’s Br. pp. 8, 15, 21, 23. 

 

1

 NAC used the term “coverage” throughout its appellee’s brief to describe what the additional insured 

endorsement does and does not provide to an additional insured. See NAC’s Br. pp. 1, 6, 7, 8, 23. NAC 

also used the term “coverage” repeatedly in its analysis of other cases. 
4

It is well settled that any question not argued on appeal cannot be raised for the 

first time in a petition for rehearing. Carey v. Haddock, 881 N.E.2d 1050, 1051 (Ind. Ct. 

App. 2008), opinion on reh’g, trans. denied. Accordingly, NAC may not argue for the 

first time in its petition for rehearing that it only has a duty to defend Peabody or that it is 

premature to determine whether it owes a duty to indemnify Peabody. We affirm our 

opinion in all regards.

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