Reversal: Indianapolis not indemnified against wrongful-death suit

A landscaping contractor for the city of Indianapolis does not have to defend the city in a citizen’s wrongful-death lawsuit, the Indiana Court of Appeals ruled Monday, reversing in favor of the tree-services company.

While Steven Smock was driving east on West 91st Street in Indianapolis, a “decomposing” tree fell on his car and caused him fatal injuries. After his death, Smock’s wife filed a wrongful-death complaint alleging counts of negligence and gross negligence against the city of Indianapolis, Davey Resource Group Inc. and The Davey Tree Expert Company.

Prior to the accident, the city and Davey Tree had entered into a services contract obligating Davey Tree to inventory trees in areas determined by the city, “collect data for each individual tree inventoried using City protocol,” and “inspect all wooded right of ways and inventory any hazardous trees using inventory protocol.” The contract also addressed Davey Tree’s duty to defend and indemnify the city under certain circumstances.

But when the city asked Davey Tree to defend it under the contract in the case at hand, Davey Tree refused, prompting the city to file a cross-claim for declaratory judgment. The municipality alleged the wrongful-death lawsuit “triggered [Davey Tree’s] obligation under the contract to defend the City.”

After the Marion Superior Court granted the city’s motion for judgment on the pleadings as to its cross-claim, Davey Tree brought an interlocutory appeal alleging the trial court erred and questioning whether Davey Tree must defend the city under Section 5.10 of the parties’ contract.

“The gross negligence count alleges that the City ‘recklessly failed to perform its duties.’ The counts against the City say nothing about Davey Tree or its negligence, let alone allege that the City is ‘responsible for,’ ‘liable for,’ or ‘vicariously liable for’ Davey Tree’s negligence,” Judge Nancy Vaidik wrote for the appellate court. “… Thus, although the City claims that it ‘is not seeking a defense for its own negligence,’ the claims against the City are based entirely on its conduct.”

The appellate court wrote that the allegations against the city and Davey Tree were different, noting the negligence count against the latter alleged that it had a duty to inventory and assess the risk of trees in the area where the tree fell down — not that it had a duty to cut down any trees — and that Davey Tree breached this duty.

“The negligence count against the City alleges, among other things, that it had a duty to ‘ensure the vegetative condition of flora contained within its public right of way,’ i.e., a duty to cut down any trees identified by Davey Tree as dangerous, and that the City breached this duty. According to the complaint as it is currently drafted, the City is being sued for its conduct only, not any conduct by Davey Tree,” Vaidik wrote.

Thus, the appellate court ultimately found that because the city is being sued for its conduct only, the claims against it do not “arise out of” any act or omission by Davey Tree, so the indemnity provision of the contract was not triggered.

The panel therefore reversed the trial court’s decision in The Davey Tree Expert Company and Davey Resource Group, Inc. v. The City of Indianapolis, 19A-CT-2326.