An insurance provider was unsuccessful in its attempt to convince the Indiana Court of Appeals to change its mind that the company has a duty to indemnify or defend.

In the rehearing of Peabody Energy Corp., Peabody Coal Co., LLC and Black Beauty Coal Co. v. Richard R. Roark and Beelman Truck Co., and North American Capacity Ins. Co., 14A01-1112-CT-555, the COA affirmed its August 2012 opinion in all regards. The court rejected the insurance provider’s petition on the grounds that North American Capacity Insurance Co. was making arguments in its petition for a rehearing that it did not raise on its appeal.

The suit started when Richard Roark, a truck driver for Beelman, was injured while delivering a load of ash to Peabody’s mine. He filed a compliant against Peabody alleging the company’s negligence caused the injuries to his left foot.

Peabody, which had a Master Performance Agreement with Beelman, demanded coverage from the trucking company’s insurance provider, NAC.

After the trial court granted a summary judgment to NAC, Peabody appealed. The COA reversed the lower court, finding Peabody was an additional insured under the policy because Roark’s injuries were directly related to his work for Beelman.

In the petition for rehearing, NAC asserted that the opinion does not explain whether it had a duty to indemnify or only a duty to defend. Also NAC claimed that an open-ended obligation to indemnify Peabody would be premature because the underlying case against the energy company is still ongoing.

 The COA dismissed those arguments.

“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,” Judge Michael Barnes wrote for the court. “Nor did NAC argue that it would be premature to determine whether it owed a duty to indemnify at this stage in the proceedings.”