Court of Appeal of Louisiana,

Second Circuit.

Dennis QUILLIAN and Betty G. Quillian, Plaintiffs–Appellants

v.

DIXIE BONDED WAREHOUSE and XYZ Insurance Co., Defendants–Appellees.

 

No. 47,330–CA.

Aug. 29, 2012.

 

Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana, Trial Court No. 2007–1296, Honorable Alvin R. Sharp, Judge.

Rountree Law Offices by James A. Rountree, for Appellants.

 

Cook, Yancey, King & Galloway by Scott L. Zimmer, Gregg A. Wilkes, for Appellee, Dixie Bonded Warehouse, Inc.

 

Breazeale, Sachse & Wilson, L.L.P. by Trenton J. Oubre, James R. Raines, for Appellee, Swift Transportation Co.

 

Before CARAWAY, DREW & SEXTON (Pro Tempore), JJ.

 

SEXTON, J. (Pro Tempore).

*1 In this tort action, Plaintiffs, Dennis and Betty G. Quillian (collectively “Mr. Quillian”), appeal the judgment of the trial court finding that Mr. Quillian was solely at fault in causing an accident that resulted in his injury and, thus, finding no liability on the part of Defendant, Dixie Bonded Warehouse (“Dixie”) and dismissing the Quillians’ claim with prejudice. For the reasons stated herein, we affirm.

 

FACTS and TESTIMONY

Mr. Quillian was allegedly injured when he opened the back doors of his trailer and was struck by a bundle of corrugated paper that had shifted during transit from Dixie, in West Monroe, to Plastipak in Pineville. Mr. Quillian was a truck driver for Swift Transportation Company, Inc. (“Swift Transportation”) and, on the day of the accident, was to transport a load of corrugated paper from Dixie to Plastipak. The bundles of corrugated paper are manufactured by Georgia Pacific and stored by Dixie pursuant to a contract between the two companies. This contract provides that Dixie is responsible for “properly and securely pallet[ing]” the bundles for shipment and for “loading, staking, and palleting the Materials in a safe and secure manner.” Dixie was also under instructions from Georgia Pacific to secure the cargo with dunnage or air bags that were supplied by Georgia Pacific.

 

Air bags are brown paper bags lined with plastic that are inserted between the cargo as it is loaded and then filled with compressed air pressing the cargo against the walls of the trailer. According to the testimony of other drivers and the expert testimony of Andrew Sievers, a safety consultant in vehicle accident litigation, air bags prevent the load from moving sideways (and to a lesser extent forward or backward) and from falling internally and becoming unstable during transit. Mr. Sievers testified that the “[p]urpose of airbag is for the safety of the cargo, not the safety of the people,” meaning that the air bags hold the cargo in place to prevent damage to the cargo during transit. Mike Roberts, shipping and transportation manager with Georgia Pacific, testified that Georgia Pacific regulations require air bags on a full load to secure cargo. Significantly, air bags were also available and could be installed at Georgia Pacific’s office facility, which is in the vicinity of the Dixie warehouse. Drivers routinely picked up loads from Dixie and then stopped at the nearby Georgia Pacific office for paperwork. In addition, Plastipak required that loads delivered to its plant be secured with air bags.

 

On the day of the accident, Bobby Foster, the foreman at Dixie, loaded Mr. Quillian’s trailer with 52 corrugated paper bundles. Mr. Foster testified that he drives the forklift and handles the paperwork for loading and unloading trailers at Dixie. He loads approximately 8–10 trailers per day and has been doing this type of work for 20 years. Mr. Foster testified that he loaded the bundles in Mr. Quillian’s 53 foot trailer in a staggered format and the bundles were double-stacked, which resulted in a stair-step formation of bundles with more bundles on the bottom level than on the top. The bottom level of bundles approached the 48 foot mark in the trailer, leaving several feet between the bottom level of bundles and the trailer doors. Mr. Foster testified that, normally, air bags would be inserted during the loading process and that these bags reduce the amount of side-to-side shifting of the cargo.

 

*2 According to Mr. Foster and Dixie owner Richard McGivern, Dixie’s air compressor was broken on that date; and, therefore, air bags were not used to secure the load in Mr. Quillian’s trailer. Mr. Foster testified that he advised Mr. Quillian of this and told him that he could get air bags at the Georgia Pacific office where Mr. Quillian was picking up his paperwork. According to Mr. Foster, Mr. Quillian replied that he was only going 120 miles and that he did not need air bags. Mr. McGivern testified that he was in constant contact with Georgia Pacific and that those in charge at Georgia Pacific and the dedicated fleet drivers were all aware that the compressor was down and that, if they wanted air bags, the driver was to go by the Georgia Pacific office to have air bags put in with the cargo. Mr. McGivern testified that the compressor was usually located on the Dixie loading dock and it was common knowledge that the compressor was down. In addition, Mr. Quillian was at Dixie almost daily and there was no doubt in Mr. McGivern’s mind that Mr. Quillian knew that the compressor was broken.

 

Mr. Quillian, however, maintains that he was unaware that air bags had not been inserted during the loading process and he would not have transported the cargo without the air bags had he known. Mr. Quillian testified that, while Mr. Foster was loading his trailer, he was assisting Dixie by moving trailers around on the premises. Mr. McGivern denied this in his testimony and Mr. Foster stated that Mr. Quillian was not allowed to move trailers. He testified that Mr. Quillian was on the dock talking with the other drivers while his trailer was being loaded. Mr. Quillian testified that, after the trailer was loaded, he pulled the trailer forward about ten feet, visually inspected the load, which appeared to him to be secure, and installed a load lock on the bottom row of bundles and closed the trailer doors.

 

The record contains much testimony about the necessity for, and proper placement of, load locks. Load locks are the property of the carrier and are installed by the driver. Mr. Roberts with Georgia Pacific testified that Georgia Pacific requires two load locks to secure cargo. As stated, Mr. Quillian installed one load lock on the bottom row of bundles. When asked why he did not install a load lock on the top row of bundles, Mr. Quillian replied that he could not climb on the bundles as they were unstable and so it was not safe to do so. In this regard, we note that Mr. Quillian testified that he did not observe the loading of the trailer and was never on the loading dock. In fact, Mr. Quillian testified that he was not allowed on the loading dock.

 

Mr. Foster, however, testified that it is normal practice for drivers to watch from the loading dock as he loads a trailer and to install load locks during the loading process. Mr. McGivern testified that he never instructed a driver that he could not be on the loading dock. He explained that the drivers would place the load locks and Mr. Foster would place air bags from the loading dock after trucks were loaded. Drivers would inspect the cargo after loading from the loading dock. Further, Mr. Sievers testified that the most appropriate place to install a load lock on this particular load of cargo would have been on the top level of bundles because it was the upper level that was subject to moving or tumbling toward the back of the trailer during transit. In addition, Ronald Baird, a friend and co-worker of Mr. Quillian’s at Swift Transportation, confirmed in his testimony that two load locks were used when there were two stacks of cargo, as in this case. If there was only one level of cargo, only one load lock was needed.

 

*3 In any event, Mr. Quillian testified that he drove to Pineville and had no indication during the drive that the load was shifting. Once at Plastipak, he opened the right door uneventfully. Mr. Quillian testified that he looked in the trailer, but did not notice any bundles out of place. He stated that he then jerked on the left door; and, when the door opened, a bundle fell out of the truck and struck him on his right side head, neck and shoulder area causing him to fall to his knees and sustain injuries.

 

There are discrepancies in the testimony regarding Mr. Quillian’s failure to see a bundle leaning on the left door and the manner in which Mr. Quillian opened the left door. As stated, Mr. Quillian maintains that he looked into the trailer and did not see any bundle(s) out of place. Mr. Quillian explained that he was standing behind the left door unlatching the two latches:

 

A: And as I pulled, that load, wherever it was it at, it came and hit this door, and when it hit the door it spun me around like that, and then the unit fell on me.

 

Q: Did it take the door out of your hand?

 

A: Yeah. It took my hand off it just as fast.

 

Q: So—but you were behind that door when you were opening it?

 

A: Yes, sir. Until it caught my shoulder and spinned me around, you know, in the opening there.

 

On the other hand, Mr. Seivers testified that, in order for the bundle to have fallen out like Mr. Quillian suggests, it would have to have been leaning on the left door and it would have been in plain view had Mr. Quillian looked in the trailer after opening the right door. Mr. Sievers opined that “[f]or [the bundle] to come out it has to be right up against the trailer door.” He repeatedly stated that there would be no line of sight problem once the right door was open:

All you’ve got to do is stick your head in there and you can see the whole distance of that door from the center of the door all the way up to the left hand wall. Absolutely you can see in there…. It’s there to be seen…. All you’ve got to do is look … It’s not an issue of do I have enough light or do I have enough visibility, it’s—there’s plenty of room.

 

Next, there is considerable disagreement about whether Mr. Quillian properly opened the left door. Mr. Sievers testified that drivers are trained to use the left door as a shield to prevent injury such as the one claimed by Mr. Quillian. In his deposition, Mr. Quillian did not mention opening the left door in this fashion. At trial, however, he testified that he did use the left door as a shield, but that the door did not hit him; rather, the cargo hit him on the right side. Mr. Sievers explained that, if Mr. Quillian did use the door as a shield, it was impossible for the bundle to hit him in the right side head/neck/torso region. According to Mr. Sievers, the bundle would have caused the door to hit Mr. Quillian and might possibly have hit his lower legs as it fell to the ground. Mr. Sievers explained:

 

*4 What I’m saying—that it doesn’t make sense. His story doesn’t make sense. If he’s using the trailer door as a shield he doesn’t get hit on the right side of his face. The door hits him, not the cargo. And the cargo would hit him probably in the legs so it doesn’t make sense. So there’s a factual issue in my opinion based on years of experience of having drivers do similar things and handling these exact same kind of accidents as an expert witness I don’t know how it could happen the way he describes it if he’s in fact using the door as a shield.

 

In Mr. Sievers’ expert opinion, in order for Mr. Quillian to have been hit by the bundle as he described, he would have to have been standing in the breach—the open space as the left door opens—and would have been pushing the left door open, thereby placing himself in a position to be hit by falling cargo.

 

Furthermore, we note that Mr. Baird testified that Mr. Quillian related to him that he had opened the doors to the trailer, taken the load locks off and had turned his back to the trailer to bring the locks down to size so that he could secure them back onto the truck when the bundle fell out of the trailer and hit him on the back of the head and neck. On the other hand, another friend and fellow truck driver of Mr. Quillian’s, Sam Rymer, testified that he was present at the time at the time of the accident. Mr. Rymer testified that he was in line waiting for dock space to unload his trailer. He stated that he could see the back end of Mr. Quillian’s trailer and observed Mr. Quillian open the right door and he “went around the other side” and opened the left door, which he had to jerk on to get open. Mr. Rymer explained that he “couldn’t see everything exactly what side it hit him on, but …. that thing came out and he went to the ground.”

 

After the accident, Mr. Quillian drove back to West Monroe. He sought medical attention for his injuries the following day.FN1 According to Mr. Quillian, there were no outward signs of injury, other than a possible abrasion. He did, however, undergo several surgeries for upper back issues. There was also evidence that Mr. Quillian suffers from degenerative disk disease and had some back issues prior to the instant injury.

 

FN1. According to his testimony, Mr. Quillian could not be seen at the clinic to which he was referred by his insurance carrier because it was closed when he returned to West Monroe. He went to the clinic the next day.

 

Mr. Quillian ultimately filed this lawsuit against Dixie for damages and Swift Transportation intervened for reimbursement. After a bench trial, which included a visit by the trial judge to the loading dock at Dixie, the judge found that Mr. Quillian was the sole “fault source” for this accident. In reasons for judgment, the trial judge stated that Mr. Quillian failed to produce any evidence of state or federal regulations or favorable industry standards requiring the use of air bags. He further found that Mr. Quillian failed to inspect his load prior to leaving Dixie. Finally, making a credibility determination, he found that the evidence “profoundly demonstrated” that Mr. Quillian failed to properly open the doors of his truck when he arrived at Plastipak, i.e., that Mr. Quillian did not use the door as a shield or stand to the side and that he provided more than one version of events. Accordingly, the trial judge ruled in favor of Dixie and dismissed Mr. Quillian’s claim with prejudice. This appeal ensued.

 

DISCUSSION

Expert Witness

*5 As a threshold matter, we note that Mr. Quillian challenges the trial judge’s refusal to allow the testimony of his truck safety expert. The identity of expert witnesses must be disclosed at least 90 days prior to trial in the absence of a contrary order of the court. La. C.C.P. art. 1425. A scheduling order of the court requiring a “will call” list of witnesses within three weeks of trial is not such a contrary order allowing the addition of expert witnesses who have not been otherwise timely identified. Since Mr. Quillian’s potential expert witness was identified only 60 days prior to trial, the trial judge was within his discretion in disallowing his testimony.

 

Determination of Fault

A trial court’s findings of fact will not be disturbed on appeal unless the reviewing court finds that they are clearly wrong or manifestly erroneous.   Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La.1993); Holland v. State Farm Mutual Automobile Insurance Company, 42,753 (La.App.2d Cir.12/05/07), 973 So.2d 134. To reverse a fact finder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart, supra. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse, even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart, supra.

 

Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, supra; Rosell v. ESCO, 549 So.2d 840 (La.1989). Further, when findings are based on determinations regarding credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings. Rosell v. ESCO, supra. Only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in that which is said. Rosell v. ESCO, supra.

 

In the case sub judice, there was differing testimony on each of the key factual findings of the trial judge. First, the testimony established that air bags are typically used to prevent cargo from falling internally and moving side to side. Mr. Sievers testified that the use of air bags is primarily to prevent damage to the cargo, rather than to prevent injury to drivers. In any event, Mr. Foster testified that Mr. Quillian knew he did not have air bags in the load and Mr. Quillian admitted that he knew that air bags were available at the Georgia Pacific office near Dixie. Mr. Foster further testified that Mr. Quillian told him that he did not need air bags on the load because he was only traveling a short distance to Pineville. Though Mr. Quillian disputes this testimony, the trial judge credited Mr. Foster’s testimony and our reading of the testimony as a whole reveals no abuse of discretion in that credibility call.

 

*6 Further, Mr. Quillian agreed that load locks are the main safety mechanism to prevent cargo from falling out when the doors to the trailer are opened. Georgia Pacific safety regulations require two load locks. Mr. Quillian, however, installed only one load lock on the bottom level of bundles. According to Mr. Foster, Mr. Quillian could have installed a second load lock on the top level during loading if Mr. Quillian had asked Mr. Foster to stop the loading process to allow him to do so. Moreover, recall that Mr. Sievers testified that the most appropriate place for a load lock on this type of load is on the top level of bundles to prevent the top level of bundles from toppling toward the back of the trailer, exactly what happened in this case. It does not seem to be in dispute that a load lock placed on the upper level of bundles would have prevented the backward movement of the bundles and, thus, prevented this accident.

 

The record also contains contradictory evidence and opinion as to whether Mr. Quillian properly inspected the load prior to leaving Dixie. Mr. Quillian testified that he pulled the trailer about ten feet from the loading dock and observed the load from the ground and that it “looked good.” He claims that he did not notice the absence of air bags. He placed the one load lock, closed and sealed the doors and left for Pineville. Mr. Sievers testified that this was not an inspection of the load and Mr. Foster testified that most drivers observe the trailer as it is being loaded and are allowed on the loading dock to inspect the load prior to leaving Dixie. Mr. Quillian did not inspect the load from the dock. Again, faced with two permissible views of this evidence, the trial judge reasonably concluded that Mr. Quillian failed to properly inspect the load.

 

Finally, the testimony regarding the manner in which Mr. Quillian opened the left door of the trailer varies, even among Mr. Quillian’s version(s) of the accident. The record does not reflect any clear error in the trial judge’s acceptance of Mr. Seivers’ testimony regarding how the door must have been opened, i.e., with Mr. Quillian standing in the breach of the doors, in order for the accident to have happened the way Mr. Quillian submits.

 

Thus, pretermitting an analysis of the respective duties of the parties herein, based on our review of the record, we find no manifest error in the trial judge’s conclusion that Mr. Quillian was 100 percent at fault for this accident. The record contains a reasonable factual basis for each of the trial judge’s factual findings. In addition, we afford much deference to the trial judge’s determinations of credibility of the witnesses and we will not disturb these findings on appeal.

 

CONCLUSION

For the foregoing reasons, the judgment of the trial court in favor of Dixie Bonded Warehouse, Inc., and against Dennis and Betty G. Quillian and dismissing their claims with prejudice, is affirmed. Costs of appeal are assessed to Dennis and Betty G. Quillian.

*7 AFFIRMED.

Court of Appeals of Indiana.

PEABODY ENERGY CORPORATION, Peabody Coal Company, LLC, and Black Beauty Coal Company, Appellants–Defendants and Third–Party Plaintiffs,

v.

Richard F. ROARK, Appellee–Plaintiff,

and

Beelman Truck Company, Appellee–Third–Party Defendant,

and

North American Capacity Insurance Company, Appellee–Third–Party Counterclaim Plaintiff and Third–Party Defendant.

 

No. 14A01–1112–CT–555.

Aug. 30, 2012.

Patrick A. Shoulders, Jean M. Blanton, Ziemer Stayman Weitzel & Shoulders, Evansville, IN, Karl L. Mulvaney, Nana Quay–Smith, Bingham Greenbaum Doll, LLP, Indianapolis, IN, Attorneys for Appellants.

 

Todd A. Croftchik, Seipp & Flick, LLP, Lake Mary, FL, Attorney for Appellee, Beelman Truck Company.

 

Julia Blackwell Gelinas, Maggie L. Smith, Dean R. Brackenridge, Carrie G. Doehrmann, Frost Brown Todd, LLC, Indianapolis, IN, Attorneys for Appellee, North American Capacity Insurance Company.

 

OPINION

BARNES, Judge.

Case Summary

*1 Peabody Energy Corporation, Peabody Coal Company, LLC, and Black Beauty Coal Company (collectively, “Peabody”) appeal the trial court’s grant of summary judgment in favor of Beelman Truck Company (“Beelman”) and North American Capacity Insurance Company (“NAC”). We affirm in part, reverse in part, and remand.

 

Issue

The dispositive issue we address is whether Peabody is an additional insured under an insurance policy issued by NAC.

 

Facts

Peabody owns property in Daviess County where it conducts mining operations, and Beelman is a trucking company. Beelman and Peabody entered into a Master Performance Agreement (“MPA”), which became effective on April 5, 2005, and continued for an initial term of one year. The MPA defined Peabody as “Owner” and Beelman as “Contractor.” App. p. 280. The MPA provided in part:

 

18. INDEMNITY AND INSURANCE.

 

A. Contractor agrees to indemnify, defend, and hold harmless Owner, its parent, subsidiaries, affiliates and related companies and the officers, directors, shareholders and employees of such companies (collectively “Owner”) against any and all claims, damages, losses and expenses, including attorney’s fees and other legal expenses, by reason of liability imposed or claimed to be imposed by law for damage because of bodily injury (including death) or on account of damage to property, sustained by any person or persons, arising out of or in consequence of the performance of the work called for by the Contract whether or not such bodily injuries, death, or damage to property arise or are claimed to have arisen in whole or in part out of the negligence or any other grounds of legal liability, including violation of any duty imposed by a statute, or ordinance or regulation, on the part of Contractor, the subcontractors, and the employees or agents of Contractor and the subcontractor (but excluding however, any liability caused by the sole negligence or willful misconduct of employees or agents of Owner).[[FN1]

 

B. Contractor shall obtain and continue in force, during the term of the Contract at its own expense, the following insurance coverages:

 

1. Workers’ Compensation and Occupational Disease Disability insurance as required by the laws of the state wherein the work is to be performed.

 

2. Employer’s Liability insurance with limits of $500,000 each occurrence, unless the laws of the state in which the work is to be performed precludes an independent right of action by an employee against an employer under common law.

 

3. Comprehensive Automobile Liability insurance with limits of $1,000,000 Bodily injury and Property Damage combined single limit.

 

4. Comprehensive General Liability and Property Damage insurance including Operations, Protective, Products/Completed Operations, Broad Form Property Damage, and Contractual Liability coverages with limits of $1,000,000 Bodily injury and Property Damage combined single limit.

 

C. All insurance policies must contain an unqualified provision that the insurance carrier will give Owner 30 days prior notice in writing of any cancellation, change or lapse in such policy(s).

 

*2 D. All insurance policies shall name Owner, its parent, subsidiaries, affiliates and related companies, as additional insureds with respect to losses or claims arising out of, or directly or indirectly related to, the performance of this Contract.

 

E. The parties hereto acknowledge that Contractor’s insurance shall be the primary coverage under the Contract.

 

F. Prior to commencement of any work hereunder, Contractor shall furnish to Owner (in form satisfactory to Owner) a Certificate of Insurance showing that the requirements of this Paragraph 17[sic] have been satisfied.

 

Id. at 281.

 

Beelman had a commercial general liability insurance policy (“the Policy”) with NAC, which was effective from December 1, 2004, to December 1, 2005. The Policy contained an additional insured endorsement that provided:

 

This endorsement modifies insurance provided under the following:

 

COMMERCIAL GENERAL LIABILITY COVERAGE PART.

 

SCHEDULE

 

Name of Person or Organization:

 

Any person or organization to which you are obligated by virtue of written contract to provide insurance such as is afforded by this policy, but only with respect to (1) occurrences taking place after such written contract has been executed and (2) occurrences resulting from work performed by you during the policy period.

 

(if no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.)

 

WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule as an insured but only with respect to liability arising out of your operations or premises owned by or rented to you.

 

Id. at 209 (emphasis added). A certificate of liability insurance was issued to Peabody referencing the Policy by number. The certificate named Peabody as the certificate holder and provided, “Certificate holder is an additional insured with respect to the auto and general liability.” Id. at 289.

 

Richard Roark was employed by Beelman as a truck driver. On June 22, 2005, while working for Beelman, Roark delivered a load of ash from a power plant to Peabody’s mine. Roark backed the Beelman truck into a spot at the mine to dump the load of ash. Roark got out of the truck to release the air brakes, which were controlled by switches on the side of the trailer. As he walked toward the middle of the trailer to release the switches, the ground gave away, and Roark went down into the ground past his knee.

 

On May 29, 2007, Roark filed a complaint against Peabody alleging that its negligence caused injuries to his left foot. On March 25, 2009, Peabody demanded coverage from NAC. In response, NAC determined that “Peabody is only an additional insured with respect to liability arising out of Beelman’s operations or premises owned by or rented to Beelman.” Id. at 182. NAC concluded that Roark’s claim did not arise “from Beelman’s work” and, therefore, NAC had no duty to defend or indemnify Peabody. Id.

 

*3 Peabody eventually filed a third-party complaint in Roark’s lawsuit requesting indemnification from Beelman, alleging that Beelman had breached the MPA, and seeking declaratory judgment regarding NAC’s obligation to provide coverage based on the Policy. Beelman and NAC denied the allegations, and NAC sought a declaratory judgment against Peabody. Peabody filed a motion for partial summary judgment against NAC. NAC and Beelman also filed motions for summary judgment against Peabody. After the matter was fully briefed and a hearing was conducted, the trial court entered final judgment in favor of Beelman and NAC and against Peabody. The trial court summarized its twenty-five pages of findings and conclusions as follows:

 

A. The MPA excludes, [sic] and Beelman Truck Co. therefore has no duty to indemnify, defend or hold Black Beauty harmless when the sole allegations of negligence are against Black Beauty. The fact that Black Beauty will defend those allegations by alleging that Plaintiff was comparatively negligent does not operate to change that outcome.

 

B. The only potential risk that needs to be insured against in this case is Black Beauty’s own negligent maintenance of its own premises. That is the only negligence alleged in the Plaintiff’s Complaint and it is the only negligence for which Black Beauty could be held legally responsible. Paragraph 18 of the MPA does not create or impose a contractual obligation on Beelman, to insure against that specific risk, i.e. the requisite meeting of the minds was lacking.

 

C. Because Beelman had no contractual duty to insure Black Beauty against claims/losses that Black Beauty negligently maintained its own premises, the insurance policy that is the subject of the Motions for Summary Judgment filed by North American Capacity and Black Beauty is not triggered. Because the MPA does not trigger Beelman’s North American Capacity insurance policy, Black Beauty’s claims against North American [C]apacity fail.

 

D. This case will return to its original procedural posture, Black Beauty defending itself against allegations that it negligently maintained premises that it owned and that were under its sole control.

 

Id. at 40. Peabody now appeals.

 

Analysis

[1] Peabody argues that the trial court improperly granted NAC’s and Beelman’s motions for summary judgment and denied its motion for summary judgment. “We review an appeal of a trial court’s ruling on a motion for summary judgment using the same standard applicable to the trial court.”   Perdue v. Gargano, 964 N.E.2d 825, 831 (Ind.2012). “Therefore, summary judgment is appropriate only if the designated evidence reveals ‘no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting Ind. Trial Rule 56(C)). Our review of summary judgment is limited to evidence designated to the trial court. Id. (citing T.R. 56(H)). All facts and reasonable inferences drawn from the evidence designated by the parties is construed in a light most favorable to the non-moving party, and we do not defer to the trial court’s legal determinations. Id.

 

*4 Peabody argues that it is entitled to coverage from NAC as an additional insured under the Policy. Alternatively, Peabody argues that, if it is not entitled to coverage under the Policy, Beelman has breached the MPA by failing to provide the insurance described in Section 18(D).FN2 Thus, we must first determine whether the Policy provides coverage to Peabody under these circumstances.

 

[2][3][4] “Insurance policies are governed by the same rules of construction as other contracts, and their interpretation is a question of law.” Masten v. AMCO Ins. Co., 953 N.E.2d 566, 569 (Ind.Ct.App.2011), trans, denied. When interpreting an insurance policy, our goal is to ascertain and enforce the parties’ intent as manifested in the policy, and we construe the policy as a whole and consider all of the provisions of the policy and not just individual words, phrases, or paragraphs. Id. “Because we construe insurance policies as a whole in each case, prior cases that focus upon similar or identical clauses or exclusions are not necessarily determinative of later cases because the insurance policies as a whole may differ.” Id.

 

The relevant portion of the Policy’s additional insured endorsement provides:

 

WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule as an insured but only with respect to liability arising out of your operations or premises owned by or rented to you.

 

App. p. 209 (emphasis added). In asserting that Peabody’s liability does not arise out of Beelman’s operations, NAC relies on Liberty Mutual Ins. Co. v. Michigan Mutual Ins. Co., 891 N.E.2d 99 (Ind.Ct.App.2008), a case interpreting an additional insured endorsement. In that case, Linda Swann, an employee of Trilithic, slipped and fell on a snow and ice covered pathway leading from the employee parking lot to a door at the back of the Triltihic facility, which Trilithic leased from Duke. Under the lease, it was Duke’s responsibility to maintain common areas including the pathway where Swann was injured. In accordance with the lease, Trilithic obtained a commercial general liability policy from Michigan Mutual in which Trilithic was the named insured and an endorsement designated Duke as an additional insured. The additional insured endorsement provided:

WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you and shown in the Schedule[.]

 

Liberty Mutual, 891 N.E.2d at 100. Swarm and her husband sued Duke, and Duke tendered the defense of the action to Michigan Mutual pursuant to the additional insured endorsement. Michigan Mutual declined to defend or indemnify Duke. Litigation ensued between Liberty Mutual, Duke’s insurer, and Michigan Mutual, and the trial court eventually declared that Michigan Mutual had no obligation to defend or indemnify Duke against the Swanns’ claims.

 

*5 On appeal, we noted that there were no Indiana cases interpreting the boilerplate additional insured endorsement at issue. Id. at 103. After considering how other jurisdictions had interpreted such provisions, we rejected a broad interpretation of the provision and agreed “that more than an incidental connection with the leased premises is required to obtain coverage under an additional insured endorsement.” FN3 Id. at 104. We observed:

 

One of the primary functions of an additional insured endorsement in the landlord-tenant context is to protect the landlord from vicarious liability for acts of its tenant on the leased premises. Northbrook Ins. Co. v. American States Ins. Co., 495 N.W.2d 450. “The additional insured endorsements in these settings are meant to provide specialized protection rather than all-encompassing coverage.” United States Fid. & Guar. v. Drazic, 877 S.W.2d at 143.

 

Id.

 

In analyzing the connection between the accident and the leased premises, we considered that the accident occurred in a common area outside of the leased premises and under Duke’s control, that there was no physical connection between the accident and the leased premises or Trilithic’s business operations thereon, and that there was no allegation that the ice and snow on which Swann slipped was caused by the leased premises, was connected to work done on the leased premises, or had any other significant connection with the leased premises. Id. at 105. We observed that the accident arose out of Duke’s own failure to maintain the pathway from the parking lot to the employee entrance and that “[t]he only way Swann’s fall was even remotely related to the leased premises was due to the fact Swann was on her way to work.” Id. We deemed this “isolated connection” to be insufficient to bring the accident within the coverage of the policy under the additional insured endorsement and held that Michigan Mutual had no duty to defend or indemnify Duke. Id.

 

Even if we agree with Liberty Mutual that an expansive interpretation of an additional insured endorsement such as the one here should be rejected, Liberty Mutual does not resolve the question of whether Peabody is entitled to coverage under the Policy. The policy language and facts of Liberty Mutual are easily distinguishable from the policy language and circumstances before us today.

 

First, although both cases apparently involve negligence claims based on premises liability theories, the relevant policy language is different. At issue here is whether the liability arises “out of [Beelman’s] operations,” not whether the liability arises out of “ownership, maintenance or use of” a leased premises, which was at issue in Liberty Mutual. App. p. 209; Liberty Mutual, 891 N.E.2d at 100. Thus, although Liberty Mutual ‘s focus on the “connection with the leased premises” may be appropriate in the landlord-tenant context, is of limited application here. Id. at 104.

 

*6 In that regard, NAC’s suggestion that Peabody’s potential liability arises out of Peabody’s own alleged negligence in maintaining its own property misses the mark because it does not resolve the question of whether Peabody’s potential liability arises out of Beelman’s operations. NAC also asserts that there is no contention that Peabody’s liability “arose out of the actions of” Beelman and that Peabody does not face “liability for Beelman’s operations.” Appellee NAC’s Brief p. 14. Because these assertions are more narrowly worded than the actual language of the Policy, which refers to “liability arising out of [Beelman’s] operations,” they are of little help in determining whether Peabody is an additional insured under the Policy. App. p. 209.

 

Aside from the differences in the policy language, Liberty Mutual is also factually distinguishable because Roark was not on Peabody’s property as a means to an end—to get to work—as Swarm was. Instead, Roark was at Peabody’s mine as part of his employment as a truck driver for Beelman.FN4 According to Roark’s complaint, while working for Beelman, he delivered a load of ash from a power plant to the mine, where he stepped in a hole and was injured. NAC’s letter denying coverage provides, “On June 22, 2005, Mr. Roark allegedly delivered a load of ash from the Petersburg Power Plant to the defendants’ mine. During his delivery, Mr. Roark allegedly stepped in a hole and suffered bodily injuries.” Id. at 180. In his deposition, Roark stated that he was directed to drive the truck to “the high wall.” Id. at 607. According to Roark, he backed the truck toward that area and then secured the truck. Roark described that process of securing the truck and how he was injured as follows:

 

Lock the brakes on it, trailer and the truck, and you get out. And all the Beelman trucks had outside switches which released the air bags on the truck so it would be solid when you raised it up in the air, you release the air brakes. You got switches on the side of the trailer. That’s where I’m walking when I step, when the ground gives away. I’m walking back to the middle ways of the trailer to release those switches, and the ground give way, and I went down into the ground up past my knee.

 

Id. at 608.

 

The parties do not direct us to any designated evidence suggesting that Roark was injured while acting outside the scope of his employment or while undertaking a task unrelated to Beelman’s operations when he was injured. Cf. Davis v. LTV Steel, Co., 128 Ohio App.3d 733, 716 N.E.2d 766 (1998) (concluding that LTV was not an additional insured “with respect to liability arising out of [Shafer’s] operations” for injuries incurred by Shafer employees who were injured on LTV’s premises while performing a task “not contemplated as part of Shafer’s duties pursuant to its contract with LTV.”). Unlike in Liberty Mutual, the connection between Roark’s presence at the mine and his injuries was not “incidental” or “isolated;” instead, Roark’s injuries were directly related to his work as a truck driver for Beelman.   Liberty Mutual, 891 N.E.2d at 104, 105. Regardless of whether Roark was injured because of Peabody’s sole negligence, the designated evidence shows that Roark’s injuries—the basis of Peabody’s potential liability—arose out of Beelman’s operations. Thus, Peabody is an additional insured under the Policy.

 

*7 As such, the trial erroneously entered summary judgment in favor of NAC and against Peabody regardless of the language of the MPA. Because of our conclusion that Peabody is an additional insured under the Policy, we necessarily conclude that Beelman did not breach the MPA. Therefore, the trial court properly granted Beelman’s motion for summary judgment.

 

Conclusion

Because Roark’s injuries arose out of Beelman’s operations, Peabody is an additional insured under the Policy. As such, Peabody, not NAC, is entitled to summary judgment on the declaratory judgment action. Further, because Peabody is an additional insured under the Policy, Beelman did not breach the MPA. Thus, summary judgment in favor of Beelman was appropriate. We affirm in part, reverse in part, and remand.

 

Affirmed in part, reversed in part, and remanded.

 

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

 

FN1. The strikethrough modifications were handwritten and initialed.

 

FN2. Peabody does not appeal the entry of judgment on its claim for indemnification against Beelman pursuant to Section 18(A) of the MPA.

 

FN3. The Liberty Mutual court did not reference Travelers Cas. & Sur. Co. v. Elkins Constructors, Inc., 2000 WL 724006 (S.D.Ind.2000), which interpreted additional insured provisions similar to the one at issue today. The Elkins court observed:

 

Although the court cannot locate any reported opinions discussing the construction of “additional insured” provisions under Indiana law, the majority of courts to have considered the issue construe such provisions (which rely on language very similar to, or identical to, the language used in the additional insured provisions in the [relevant] policies) broadly, encompassing coverage to extend to liability beyond merely the additional insured’s vicarious liability for the actions of the named insured.

 

Elkins, 2000 WL 724006 at 2 (footnote omitted).

 

FN4. In its brief, Beelman does not dispute that Roark was at the mine “because of his employment with Beelman.” Appellee Beelman’s Br. p. 5.