## F OR PUBLICATION

ATTORNEY S FOR APPELLANT S : 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. MULVANE Y 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. B R ACKENRIDGE CARRIE G. DOEHRMANN Frost Brown Todd, LLC India napolis, Indiana



## IN THE COURT OF APPEALS OF INDIANA

PEABODY ENERGY CORPORATION, ) PEABODY COAL COMPANY, LLC, and ) BLACK BEAUTY COAL COMPANY, ) ) Appellant s

- 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 r ehearing

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 Peabo dy Energy

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

(collectively, “Peabody”) were additional insured s 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 pet ition for rehearing, NAC asserts that, although our opinion refer s to

“coverage,” 1 

### the 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 pre mature 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 du ty 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 betw een its potential obligation to defend and its potential obligation to

indemnify Peabody based on the facts of th e 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 st age 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” thro ughout 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 pet ition for rehearing that it only has a duty to defend Peabody or that it is

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

opinion in all regards.

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