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ATTORNEYS FOR APPELLANT David F. McNamar McNamar & Associates, P.C. Indianapolis, Indiana

ATTORNEYS FOR APPELLEE INDIANA INSURANCE COMPANY Joseph Dietz Meils Thompson Dietz & Berish Indianapolis, Indiana ATTORNEYS FOR APPELLEE CONTINENTAL CASUALTY COMPANY Mary K. Reeder Riley Bennett & Egloff, LLP Indianapolis, Indiana OF COUNSEL Joseph Borders Peter G. Daniels Walker Wilcox Matousek LLP Chicago, Illinois ATTORNEYS FOR APPELLEE MJ INSURANCE, INC. Philip E. Kalamaros Hunt Suedhoff Kalamaros LLP St. Joseph, Michigan

______________________________________________________________________________

In the

FILED
of the supreme court, court of appeals and tax court

Dec 17 2010, 3:57 pm

Indiana Supreme Court
_________________________________ No. 49S02-1001-CV-32 SHEEHAN CONSTRUCTION COMPANY, INC., VINCENT B. ALIG, M.D. AND MARY JEAN ALIG INDIVIDUALLY, CO-TRUSTEES OF THE MARY JEAN ALIG REVOCABLE TRUST, AND AS REPRESENTATIVES OF A CLASS OF ALL OTHERS SIMILARLY SITUATED,

CLERK

Appellants (Petitioners below), v. CONTINENTAL CASUALTY COMPANY, INDIANA INSURANCE COMPANY, AND MJ INSURANCE, INC., Appellees (Respondents below). _________________________________

Appeal from the Marion Superior Court, Civil Div. F-12, No. 49F12-0702-PL-007751 The Honorable Michael D. Keele, Judge _________________________________ On Petition For Rehearing _________________________________ December 17, 2010

Rucker, Justice. Indiana Insurance seeks rehearing of this Court's opinion in which we determined that damage caused by faulty workmanship may be covered under a standard Commercial General Liability (CGL) policy. See Sheehan Constr. Co. v. Cont'l Cas. Co., 935 N.E.2d 160 (Ind. 2010). More particularly, on a claim for indemnification made by Sheehan Construction Company and a Class of homeowners (hereafter "Sheehan") against various insurance carriers including Indiana Insurance, the trial court entered summary judgment in favor of the insurance carriers. Among other things the trial court determined that under the terms of the CGL polices there was no "occurrence" or "property damage" and thus there was no coverage. Sheehan appealed and the Court of Appeals affirmed the judgment of the trial court. See Sheehan Constr. Co. v. Cont'l Cas. Co., 908 N.E.2d 305 (Ind. Ct. App. 2009). Because the Court of Appeals affirmed the trial court's judgment on the issue of coverage, it did not address Indiana Insurance's alternative argument that summary judgment should also be affirmed on grounds that Sheehan provided untimely notice of its claims. We granted transfer thereby vacating the Court of Appeals opinion, see Indiana Appellate Rule 58A, and reversed the judgment of the trial court. In so doing we addressed what we characterized as the "main issue" in the case, namely: "whether a standard commercial general liability ("CGL") insurance policy covers an insured contractor for the faulty workmanship of its subcontractor." Sheehan Constr. Co., 935 N.E.2d at 162. We did not address the timeliness of Sheehan's notice. Indiana Insurance appropriately filed a petition for rehearing which we now grant so that this issue may be addressed.1

In its reply to Indiana Insurance's petition for rehearing Sheehan contends Indiana Insurance has waived this issue because "[i]t did not file for Rehearing to ask the Court of Appeals to address the issue. Indi ana did not seek transfer within the appropriate time if it wanted the issue addressed. Finally, Indiana did not
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Our standard of review for summary judgment is that used in the trial court: summary judgment is appropriate only where the evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); TomWat, Inc. v. Fink, 741 N.E.2d 343, 346 (Ind. 2001). All facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party. Tom-Wat, Inc., 741 N.E.2d at 346. Also, review of a summary judgment motion is limited to those materials designated to the trial court. Mangold v. Ind. Dep't of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001).

A detailed recitation of the facts, procedural history, and background of this case is set forth in our original opinion. Here we recite only the facts necessary to our decision on rehearing. The record reflects the following language in Indiana Insurance's CGL policy under which Sheehan sought indemnification: 2. Duties In The Event of Occurrence, Offense, Claim or Suit. a. You must see to it that we are notified as soon as practicable of an "occurrence" or an offense which may result in a claim. If a claim is made or "suit" is brought against any insured, you must: (1) Immediately record the specifics of the claim or "suit" and the date received; and
raise the issue in its response to Sheehan's and the Class' Petition to Transfer. It did not participate in oral argument in this Court." Appellants' Reply to Reh'g Pet. at 2-3. These contentions lack merit. First, we fail to see the relevance of whether Indiana Insurance participated in oral argument. In any event, Indiana Insurance raised the lack of timely notice in its brief before the Court of Appeals, see Br. of Appellee Indiana at 33, as well as its petition in response to Sheehan's petition to transfer to this Court. See Appellee Indiana's Response to Pet. for Transfer at 8. "A petition for rehearing is a vehicle that affords the reviewing court the opportunity to correct its own omission or errors. A petitioner may seek rehearing only on points raised in the original brief." Griffin v. State, 763 N.E.2d 450, 450-51 (Ind. 2002) (internal quotation and citations omitted). If a transfer petition is granted on whatever grounds, "the Supreme Court shall have jurisdiction over the appeal and all issues as if originally filed in the Supreme Court." Ind. App. R. 58(A) (emphasis added). The record is clear that Sheehan properly preserved the issue before us.

.... b.

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(2)

Notify us as soon as practicable.

You must see to it that we receive written notice of the claim or "suit" as soon as practicable. c. You and any other involved insured must: (1) Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the claim or "suit"; .... d. No insured will, except at the insured's own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent.

Appellant's App. at 702-03. In addition to the foregoing, Indiana Insurance tendered various other exhibits and affidavits in support of its motion for summary judgment. See Appellant's App. at 688-690. Among other things the materials establish that Vincent B. Alig and his wife Mary Jean Alig

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