Walsh Construction Company v. Zurich American Insurance Company , 72 N.E.3d 957 ( 2017 )


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  • ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    Michael L. Schultz                                       ZURICH AMERICAN INSURANCE
    Parr Richey Obremskey Frandsen &                         COMPANY
    Patterson LLP                                            Kyle A. Lansberry            FILED
    Indianapolis, Indiana                                    Lewis S. Wooton         Mar 28 2017, 9:22 am
    Michael R. Giordano          CLERK
    Lewis Wagner, LLP        Indiana Supreme Court
    Court of Appeals
    Indianapolis, Indiana         and Tax Court
    ATTORNEYS FOR APPELLEE
    ROADSAFE HOLDINGS, INC.
    T. Allon Renfro
    Swanson, Martin & Bell, LLP
    Chicago, Illinois
    Robert P. Conlon
    Joyce F. Noyes
    Walker Wilcox Matousek LLP
    Chicago, Illinois
    IN THE
    COURT OF APPEALS OF INDIANA
    Walsh Construction Company,                              March 28, 2017
    Appellant-Plaintiff,                                     Court of Appeals Case No.
    45A04-1606-PL-1284
    v.                                               Appeal from the Lake Superior
    Court
    Zurich American Insurance                                The Honorable William E. Davis,
    Company,                                                 Judge
    Appellee-Defendant,                                      Trial Court Cause No.
    45D05-1506-PL-43
    Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017            Page 1 of 17
    and
    Roadsafe Holdings, Inc. d/b/a
    Roadsafe Traffic Systems, Inc.,
    Appellee-Intervener.
    Najam, Judge.
    Statement of the Case
    [1]   Walsh Construction Company (“Walsh”) appeals the trial court’s entry of
    summary judgment in favor of Zurich American Insurance Company
    (“Zurich”) on Walsh’s complaint for declaratory judgment. Walsh raises three
    issues for our review, which we consolidate and restate as whether the trial
    court erred when it entered summary judgment for Zurich. As a matter of first
    impression, we hold that a self insured retention endorsement to a commercial
    general liability insurance policy requires the named insured to satisfy the
    amount of the endorsement, whether on its own behalf or on behalf of an
    additional insured, before the additional insured may seek to enforce the policy
    against the insurer. As that has not occurred here, we affirm the trial court’s
    entry of summary judgment for Zurich.
    Facts and Procedural History
    [2]   In January of 2009, Walsh, a general contractor, hired Roadsafe Holdings, Inc.
    d/b/a Roadsafe Traffic Systems, Inc. (“Roadsafe”) to be Walsh’s subcontractor
    in the construction of a traffic exchange involving Interstates 65 and 80 in Lake
    Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017   Page 2 of 17
    County. Roadsafe’s work obligations included providing a safe traffic pattern
    through the work zone. Walsh’s contract with Roadsafe required Roadsafe to
    indemnify Walsh for any liability resulting from Roadsafe’s failure or
    negligence in its work. Accordingly, Walsh’s contract required Roadsafe to
    procure a commercial general liability insurance policy (“CGL policy”) that
    named Walsh as an additional insured on a primary and noncontributory basis.
    [3]   Roadsafe obtained its CGL policy from Zurich. The CGL policy defined
    Roadsafe as the “Named Insured” and stated that, “[t]hroughout this policy[,]
    the words ‘you’ and ‘your’ refer to the Named Insured . . . . The word ‘insured’
    means any person or organization qualifying as such under Section II—Who Is
    An Insured.” Appellant’s App. Vol. 3 at 72. An endorsement attached to the
    CGL policy named as additional insureds any “person and organization where
    required by written contract,” such as Roadsafe’s contract with Walsh, “but
    only with respect to liability for ‘bodily injury’ . . . by your [Roadsafe’s] acts or
    omissions . . . .” 
    Id. at 99.
    The CGL policy then provided as follows: “We
    [Zurich] will pay those sums that the insured becomes legally obligated to pay
    as damages because of ‘bodily injury’ . . . to which this insurance applies. We
    will have the right and duty to defend the insured against any ‘suit’ seeking
    those damages.” 
    Id. at 72.
    [4]   However, Roadsafe also obtained a $500,000-per-occurrence self insured
    retention endorsement (“the SIR endorsement”) to the CGL policy. The SIR
    endorsement amended the CGL policy as follows:
    Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017    Page 3 of 17
    The insurance provided by this policy is subject to the following
    additional provisions, which in the event of conflict with any other
    provisions elsewhere in the policy, shall control the application of the
    insurance to which this endorsement applies:
    1. Self Insured Retention and Defense Costs—Your Obligations
    A. The “self insured retention” amounts stated . . . apply
    as follows:
    1. If a Per Occurrence Self Insured Retention Amount is
    shown in this endorsement, you shall be responsible for
    payment of all damages and “pro rata defense costs” for each
    “occurrence”[] until you have paid damages equal to the Per
    Occurrence amount . . . .
    ***
    B. Defense Costs
    Except for any “defense costs” that we may elect to
    pay, you shall pay “pro rata defense costs” as they are
    incurred . . . .
    C. Settlement of Claim
    1. Within Self Insured Retention
    If any final judgment or settlement is less than the “self
    insurance retention” indicated . . . above, you shall
    have the right and obligation to settle all such claims or
    suits . . . .
    Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017           Page 4 of 17
    2. Excess of Self Insured Retention
    You may not settle any claim or suit which exceeds any
    “self insured retention” amount indicated . . . without
    our written permission to do so. . . .
    ***
    H. Compliance
    Compliance with the requirements set forth in this
    endorsement is a condition precedent to coverage. . . .
    II. Our Rights and Obligations Excess of the Self Insured
    Retention
    ***
    B. Damages Excess of Self Insured Retention—Per
    Occurrence or Per Claim
    We shall be liable only for the amounts of our share of
    “pro rata defense costs” and damages in excess of the
    “self insured retention” amounts . . . above . . . .
    ***
    D. Settlement of Claims
    1. Within Self Insured Retention
    Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017      Page 5 of 17
    We shall have, at our option, the right but not the
    obligation or duty[] to negotiate the settlement of any
    claim within the applicable “self insured retention”
    amount, which in our opinion is deemed expedient.
    But we shall obtain your consent prior to entering into
    any settlement of any claim which is equal to or less
    than the “self insured retention” amount. . . .
    2. Excess of Self Insured Retention
    With respect to any claim under this insurance which
    has been tendered to us and which may exceed the “self
    insured retention” amount shown . . . we have the right
    and duty to negotiate the settlement of such claim and
    may pay any or all damages and “defense costs” on
    your behalf, both within and excess of the applicable
    “self insured retention” amount. Any such payments
    made by us for damages or “defense costs” within the
    “self insured retention” amount shall be reimbursed
    promptly by you.
    Definitions—
    A. “Self insured retention” means:
    the amount or amounts which you or any insured must
    pay for all compensatory damages and “pro rata
    defense costs” which you or any insured shall become
    legally obligated to pay because of damages arising from any
    coverage included in the policy.
    ***
    Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017           Page 6 of 17
    D. “Occurrence[,]” for purposes of this endorsement only,
    means an “occurrence[,]” offense, accident, act, error or
    omission[,] or any other such similar event, as defined or
    used in our policy, that must occur in order to initiate
    payment of covered losses under the policy terms and
    conditions.
    
    Id. at 68-71
    (emphases added).
    [5]   On June 15, 2009, Boguslaw Maczuga was injured while operating his motor
    vehicle through the work zone’s traffic pattern. On June 27, 2011, Maczuga
    served Walsh with a Second Amended Complaint in which Maczuga alleged
    that Walsh had negligently created an unsafe traffic pattern.1 As a result of
    Maczuga’s complaint, on January 18, 2012, Walsh filed a third-party complaint
    against Roadsafe. In its complaint, Walsh alleged, in relevant part, that
    Roadsafe had failed to indemnify Walsh and that Roadsafe had breached its
    contract with Walsh. Specifically, Walsh’s third-party complaint stated that
    “[t]he Maczuga lawsuit seeks recovery from Walsh for its alleged negligence in
    connection with work that was to be performed by Road[s]afe” and that,
    “[f]ollowing service of process of the Maczuga lawsuit, Walsh tendered its
    defense and indemnity to Road[s]afe” but Roadsafe had “failed to either agree
    to indemnify or undertake Walsh’s defense.” Appellant’s App. Vol. 2 at 54-55.
    1
    Maczuga’s complaint did not state a sum certain that he sought in relief.
    Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017       Page 7 of 17
    [6]   Thereafter, Walsh notified Zurich, pursuant to the terms of the CGL policy, of
    Maczuga’s lawsuit and requested that Zurich defend Walsh in that suit. Zurich
    denied Walsh’s request, and Walsh filed a complaint for declaratory judgment
    against Zurich in which Walsh alleged that Zurich had a duty to defend and
    indemnify Walsh. 
    Id. at 61-62.
    Roadsafe intervened in the declaratory
    judgment action, and the parties moved for summary judgment. After a
    hearing, the trial court entered summary judgment for Zurich, stating:
    Zurich has no contractual obligation to cover Walsh as an
    additional insured at this time. First of all, the policy is a liability
    policy between Zurich and Roadsafe and no person or entity has
    sued or even made a claim against Roadsafe for any type of
    negligence. Also there is a [SIR endorsement] that requires the
    insured to pay the first $500,000.00 of costs and damages of any
    claim before Zurich becomes obligated to pay out on the policy.
    Since there has been no claim for negligence against Roadsafe,
    Roadsafe has paid nothing and has made no claim under the
    policy.
    
    Id. at 7.
    This appeal ensued.
    Discussion and Decision
    [7]   Walsh appeals the trial court’s entry of summary judgment for Zurich. Our
    standard of review is clear:
    We review summary judgment de novo, applying the same
    standard as the trial court: “Drawing all reasonable inferences in
    favor of . . . the non-moving parties, summary judgment is
    appropriate ‘if the designated evidentiary matter shows that there
    is no genuine issue as to any material fact and that the moving
    party is entitled to judgment as a matter of law.’” Williams v.
    Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017      Page 8 of 17
    Tharp, 
    914 N.E.2d 756
    , 761 (Ind. 2009) (quoting T.R. 56(C)). “A
    fact is ‘material’ if its resolution would affect the outcome of the
    case, and an issue is ‘genuine’ if a trier of fact is required to
    resolve the parties’ differing accounts of the truth, or if the
    undisputed material facts support conflicting reasonable
    inferences.” 
    Id. (internal citations
    omitted).
    The initial burden is on the summary-judgment movant to
    “demonstrate [ ] the absence of any genuine issue of fact as to a
    determinative issue,” at which point the burden shifts to the non-
    movant to “come forward with contrary evidence” showing an
    issue for the trier of fact. 
    Id. at 761-62
    (internal quotation marks
    and substitution omitted). And “[a]lthough the non-moving
    party has the burden on appeal of persuading us that the grant of
    summary judgment was erroneous, we carefully assess the trial
    court’s decision to ensure that he was not improperly denied his
    day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
    
    916 N.E.2d 906
    , 909-10 (Ind. 2009) (internal quotation marks
    omitted).
    Hughley v. State, 
    15 N.E.3d 1000
    , 1003 (Ind. 2014) (alterations original to
    Hughley).
    [8]   Moreover, this appeal requires the interpretation of a contract. Interpretation
    and construction of contract provisions are questions of law. John M. Abbott,
    LLC v. Lake City Bank, 
    14 N.E.3d 53
    , 56 (Ind. Ct. App. 2014). As such, cases
    involving contract interpretation are particularly appropriate for summary
    judgment. 
    Id. And because
    the interpretation of a contract presents a question
    of law, it is reviewed de novo by this court. Jenkins v. S. Bend Cmty. Sch. Corp.,
    
    982 N.E.2d 343
    , 347 (Ind. Ct. App. 2013), trans. denied. We review the contract
    as a whole, attempting to ascertain the parties’ intent and making every attempt
    Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017   Page 9 of 17
    to construe the contract’s language “so as not to render any words, phrases, or
    terms ineffective or meaningless.”2 Four Seasons Mfg., Inc. v. 1001 Coliseum, LLC,
    
    870 N.E.2d 494
    , 501 (Ind. Ct. App. 2007). “And, in reading the terms of a
    contract together, we keep in mind that the more specific terms control over any
    inconsistent general statements.” DLZ Ind., LLC v. Greene Cty., 
    902 N.E.2d 323
    ,
    328 (Ind. Ct. App. 2009).
    [9]   The question presented in this appeal is whether the SIR endorsement amended
    Zurich’s obligation under the CGL policy to defend Walsh.3 Again, under the
    CGL policy Zurich agreed to “pay those sums that the insured becomes legally
    obligated to pay as damages because of ‘bodily injury’ . . . to which this
    insurance applies,” which imposed upon Zurich “the right and duty to defend
    the insured against any ‘suit’ seeking those damages.” Appellant’s App. Vol. 3
    at 72 (emphasis added). On appeal, Walsh and Roadsafe both argue that the
    SIR endorsement amends only Zurich’s relationship to Roadsafe and that it
    2
    We reject Walsh’s characterization of the SIR endorsement as “exclusionary.” Appellant’s Br. at 15-16. In
    any event, as explained below we conclude that the SIR endorsement is unambiguous.
    3
    The trial court concluded that “no person or entity has sued or . . . made a claim against Roadsafe for any
    type of negligence,” and Roadsafe argues on appeal that we should affirm the trial court’s entry of summary
    judgment on that basis. Appellant’s App. Vol. 2 at 7. We cannot agree. Walsh’s third-party complaint
    against Roadsafe alleged that the underlying and allegedly negligent acts were Roadsafe’s and, as such, that
    Roadsafe had a duty to indemnify Walsh. In other words, Walsh’s third-party complaint seeks to transfer
    any liability under Maczuga’s original claim of negligence from Walsh to Roadsafe and expressly does so on
    the basis that the underlying and allegedly negligent acts were Roadsafe’s. Accordingly, we reject Roadsafe’s
    argument on appeal that we should affirm the trial court’s entry of summary judgment on that basis.
    Similarly, we also reject Roadsafe’s argument that Walsh has not sufficiently alleged negligence on the part
    of Roadsafe for Walsh to have standing under the CGL policy as an additional insured. With respect to both
    of those arguments, Walsh’s third-party complaint against Roadsafe is sufficient for Walsh to invoke the
    CGL policy and its endorsements.
    Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017                       Page 10 of 17
    does not amend Zurich’s obligations under the CGL policy with respect to
    Walsh. Zurich, on the other hand, contends that the SIR amount must be
    satisfied before Zurich can have any obligations under the CGL policy. We
    conclude that Zurich’s reading of the SIR endorsement properly harmonizes the
    totality of that document’s language and applies the SIR endorsement as it was
    intended to be applied.
    [10]   We have discussed SIR endorsements before, noting in particular the following:
    There are key differences between . . . deductible[s], which
    generally exist in primary policies, and retained amounts, which
    generally are found in umbrella policies or policies designed to be
    excess of a self-insured amount. One difference is that while a
    deductible is subtracted from a policy’s limits, thereby reducing
    an insurer’s total obligation to the insured, the full limits of a
    policy including a retained amount are available to the insured
    once that amount has been satisfied. See Douglas R. Richmond,
    Issues and Problems in “Other Insurance,” Multiple Insurance and Self-
    Insurance, 22 Pepp. L. Rev. 1373, 1449 (1995). Another key
    difference is that in a policy with a deductible, the insurer retains
    complete control of claims handling; in a policy with a retained
    amount, the insurer has no claims handling responsibility,
    particularly with respect to claims not exceeding the retained
    amount. See 
    id. Monroe Guar.
    Ins. Co. v. Langreck, 
    816 N.E.2d 485
    , 495 (Ind. Ct. App. 2004)
    (footnote omitted). Similarly, we have noted that
    a policy with a deductible obliges the insurer to respond to a
    claim from “dollar one” (i.e., immediately upon tender), subject
    to the insurer’s right to later recoup the amount of the deductible
    from the insured. A policy subject to a SIR, in contrast, obliges
    Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017   Page 11 of 17
    the policyholder itself to absorb expenses up to the amount of the
    SIR, at which point the insurer’s obligation is triggered.
    Allianz Ins. Co. v. Guidant Corp., 
    884 N.E.2d 405
    , 410 n.2 (Ind. Ct. App. 2008)
    (quotation marks and alterations omitted), trans. denied. Not surprisingly, “[a]n
    insured maintains a SIR in order to reduce the cost of premiums on its
    insurance policy.” Susan N.K. Gummow, No “SIR”! Insurer Can’t Avoid
    Payment If Insured Files For Bankruptcy, Am. Bankr. Inst. J., Apr. 2005, at 18.
    [11]   Both the Indiana Supreme Court and this court have repeatedly recognized
    that, as between an insurer and a single insured, the insurer’s responsibilities
    arise only “[a]fter the self-insured retention amounts specified in the policies are
    satisfied.” Cinergy Corp. v. Associated Elec. & Gas Ins. Servs., Ltd., 
    865 N.E.2d 571
    ,
    576-77 (Ind. 2007); see also Thomson Inc. v. Ins. Co. of N. Am., 
    11 N.E.3d 982
    ,
    1010-11 (Ind. Ct. App. 2014) (requiring the insured to show that “the SIR for
    each ‘occurrence’ has been satisfied before any of [the insurer’s]
    obligations . . . are triggered”), trans. denied. We have also held that “it is the
    responsibility of the policyholder to prove this condition precedent to
    coverage—SIR exhaustion—and unless and until it is able to do so, the duty to
    defend is not triggered.” 
    Allianz, 884 N.E.2d at 420
    ; see also Monroe Guar., 
    816 N.E.2d 495-96
    (holding that coverage is available to the insured once the SIR
    has been satisfied). But the question of whether a SIR endorsement applies
    Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017   Page 12 of 17
    only to the insurer’s relationship to the named insured or also applies to
    additional insureds is a question of first impression for our courts.4
    [12]   In light of the plain language of the instant CGL policy and SIR endorsement,
    we agree with Zurich that it has no obligation to Walsh under the CGL policy
    until the $500,000 SIR amount has been satisfied.5 “Self insured retention” is
    defined within the SIR endorsement as “the amount or amounts which you or
    any insured must pay for all compensatory damages and ‘pro rata defense costs’
    which you or any insured shall become legally obligated to pay because of
    damages arising from any coverage included in the policy.” Appellant’s App.
    Vol. 3 at 71. Thus, substituting the endorsement and policy definitions where
    appropriate, the SIR endorsement obliges the named insured as follows:
    If a Per Occurrence [amount that the named insured or any
    additional insured must pay] is shown . . . , [the named insured]
    shall be responsible for payment of all damages and “pro rata
    4
    Further, none of the foreign authority cited by the parties is on all fours with the instant appeal. See Forecast
    Homes, Inc. v. Steadfast Ins. Co., 
    105 Cal. Rptr. 3d 200
    , 203 (Cal. Ct. App. 2010) (identifying the issue on
    appeal as whether an additional insured could invoke an insurer’s obligation to defend by paying the SIR
    amounts in lieu of the named insured paying those amounts); FHP Tectonics Corp. v. Am. Home Assurance Co.,
    
    57 N.E.3d 575
    , 584 (Ill. App. Ct. 2016) (concluding that the SIR endorsement, which stated that the insurer
    would “pay on behalf of the Insured,” applied to both the named insured and additional insureds); Am. Nat’l
    Fire Ins. Co. v. Nat’l Union Fire Ins. Co., 
    796 N.E.2d 1133
    , 1143-44 (Ill. App. Ct. 2003) (stating in dicta and
    based on a highly limited review of the SIR endorsement’s language that that endorsement “refers only to the
    named insured . . . and not to additional insureds . . . .”); see also Sherwood Constr. Co. v. Am. Home Assurance
    Co., No. CIV-09-1395-HE, 
    2011 WL 6012605
    , at *4-5 (W.D. Okla. 2011) (reaching the same conclusion
    reached in FHP Tectonics).
    5
    We reject Zurich’s suggestion that the SIR endorsement nullifies the fact that Roadsafe is the named
    insured and Walsh is an additional insured under the CGL policy. To the contrary, the SIR endorsement
    expressly recognizes “you or any insured,” that is, both the named insured and any additional insureds.
    Appellant’s App. Vol. 3 at 71.
    Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017                           Page 13 of 17
    defense costs” for each “occurrence”[] until [the named insured]
    ha[s] paid damages equal to the Per Occurrence Amount . . . .
    
    Id. at 68.
    In other words, the SIR endorsement shifts the initial cost burden
    from Zurich to Roadsafe, the named insured, not just for Roadsafe’s damages
    and defense costs but also for any additional insured’s damages and defense
    costs. As such, the SIR endorsement amends Zurich’s obligation under the
    CGL policy to defend Walsh by placing the first $500,000 of that burden on
    Roadsafe.
    [13]   This plain reading of the SIR endorsement is supported by its other provisions.
    In particular, in other places the SIR endorsement relies on the relationship
    between Zurich and Roadsafe exclusively and without concern for additional
    insureds, which is consistent with the SIR endorsement having placed the
    burden to defend additional insureds on Roadsafe. For example, the SIR
    endorsement states that: “you [Roadsafe] shall pay ‘pro rata defense costs’ as
    they are incurred . . . ”; “you [Roadsafe] shall have the right and obligation to
    settle” claims within the SIR amount, but “[y]ou [Roadsafe] may not settle any
    claim or suit which exceeds” the SIR amount; and “[w]e [Zurich] shall be liable
    only for the amounts of our share of ‘pro rata defense costs’ and damages in
    excess of” the SIR amount. 
    Id. at 69-70.
    [14]   Further, the SIR endorsement unambiguously conditions Roadsafe’s
    compliance with its provisions as a “condition precedent to coverage” from
    Zurich. 
    Id. at 70.
    And there is no rational basis to apply the SIR endorsement
    as a condition precedent to Zurich’s coverage of the named insured but not to
    Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017   Page 14 of 17
    Zurich’s coverage of additional insureds. Moreover, the SIR endorsement
    prioritizes its obligations and definitions over any other provision of or
    endorsement to the CGL policy, stating that, “in the event of conflict with any
    other provisions elsewhere in this policy,” the SIR endorsement “shall control
    the application of the insurance to which this endorsement applies.” 
    Id. at 68.
    And the SIR endorsement enabled Roadsafe to obtain the CGL policy from
    Zurich at a reduced premium. Taken together, those provisions unambiguously
    manifest the intent of the parties to the contracts, Zurich and Roadsafe, for the
    SIR endorsement to control their relationship such that Roadsafe assumed all
    costs and liability for the first $500,000 of any claim that might be made under
    the CGL policy, regardless of whether that claim was against Roadsafe or an
    additional insured.
    [15]   Nonetheless, Walsh asserts that the following language conflicts with Zurich’s
    duty to defend or, in the alternative, creates an ambiguity in the SIR
    endorsement that precludes summary judgment for Zurich and requires
    summary judgment for Walsh:
    D. Settlement of Claims
    ***
    2. Excess of Self Insured Retention
    With respect to any claim under this insurance which
    has been tendered to us and which may exceed the “self
    insured retention” amount shown . . . we have the right
    Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017   Page 15 of 17
    and duty to negotiate the settlement of such claim and
    may pay any or all damages and “defense costs” on
    your behalf, both within and excess of the applicable
    “self insured retention” amount. Any such payments
    made by us for damages or “defense costs” within the
    “self insured retention” amount shall be reimbursed
    promptly by you.
    
    Id. at 71.
    According to Walsh, this provision “would be rendered meaningless”
    by Zurich’s reading of the SIR endorsement. Appellant’s Br. at 12.
    [16]   We cannot agree with Walsh that that language, which pertains to Zurich’s
    settlement obligations when a claim may exceed the SIR amount, has any
    application on these facts. Walsh has not requested declaratory relief with
    respect to Zurich’s potential obligation to negotiate a settlement. Rather,
    Walsh has sought declaratory relief only with respect to whether Zurich owes
    Walsh a duty to defend and a duty to provide indemnification. See Appellant’s
    App. Vol. 2 at 61-62. The language relied on by Walsh creates no such
    affirmative duties.
    [17]   We also reject Walsh’s argument that, “[i]f Zurich’s duty to provide coverage to
    Walsh . . . is conditioned upon Roadsafe satisfying its $500,000 SIR amount,
    then the [CGL p]olicy by definition cannot be primary as to Walsh.”
    Appellant’s Br. at 12. Walsh is still a primary insured under the CGL policy
    Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017   Page 16 of 17
    and has no less status than any other primary insured.6 If Walsh disapproves of
    its subcontractors obtaining SIR endorsements, Walsh can manage its
    contractual relationships with its subcontractors accordingly.7
    [18]   In sum, we hold that, under the plain language of the SIR endorsement, Zurich
    has no obligation under the CGL policy to defend or indemnify Walsh until
    Roadsafe has satisfied the $500,000 SIR amount. Accordingly, we affirm the
    trial court’s entry of summary judgment for Zurich.
    [19]   Affirmed.
    Bailey, J., and May, J., concur.
    6
    Walsh also asserts that, given our reading of the SIR endorsement, a genuine issue of material fact exists
    that precludes the entry of summary judgment because Zurich has not designated any evidence to
    demonstrate that Roadsafe has not satisfied the SIR amount. We do not accept this argument. There is no
    dispute on this record that Roadsafe has failed to defend or indemnify Walsh in the Maczuga case. Indeed,
    that undisputed fact is the basis for Walsh’s third-party complaint against Roadsafe as well as Walsh’s
    attempt to seek relief from Zurich in these declaratory judgment proceedings, and Zurich designated both of
    those complaints in support of its motion for summary judgment in the instant case.
    7
    Though not relevant in light of the plain language of the SIR endorsement, we note that Walsh’s contract
    with Roadsafe required Roadsafe to be “responsible for any . . . self-insured retention with respect to
    coverage afforded Additional Insureds.” Appellant’s App. Vol. 4 at 16.
    Court of Appeals of Indiana | Opinion 45A04-1606-PL-1284 | March 28, 2017                       Page 17 of 17