Opinion
Court of Appeals Case No. 19A-PL-1094
03-04-2020
Progressive Southeastern Insurance Co., Appellant-Plaintiff, v. Gregory Smith and Nolan Clayton, Appellees-Defendants and Erie Insurance Group, Brackett Restaurant Group, LLC, d/b/a Stacked Pickle, and Allstate Insurance Company Defendants
ATTORNEYS FOR APPELLANT Margaret M. Christensen Karl L. Mulvaney Dentons Bingham Greenebaum LLP Indianapolis, Indiana ATTORNEYS FOR APPELLEE GREGORY SMITH Ann Marie Waldron Waldron Law, LLC Indianapolis, Indiana Michael E. Simmons Hume Smith Geddes Green & Simmons, LLP Indianapolis, Indiana Robert P. Thomas Thomas Law Office Indianapolis, Indiana ATTORNEY FOR APPELLEE NOLAN CLAYTON William D. Beyers Buchanan & Bruggenschmidt, P.C. Zionsville, Indiana
OPINION ON REHEARING
ATTORNEYS FOR APPELLANT
Margaret M. Christensen
Karl L. Mulvaney
Dentons Bingham Greenebaum LLP
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
GREGORY SMITH
Ann Marie Waldron
Waldron Law, LLC
Indianapolis, Indiana
Michael E. Simmons
Hume Smith Geddes
Green & Simmons, LLP
Indianapolis, Indiana
Robert P. Thomas
Thomas Law Office
Indianapolis, Indiana
ATTORNEY FOR APPELLEE
NOLAN CLAYTON
William D. Beyers
Buchanan &
Bruggenschmidt, P.C.
Zionsville, Indiana
Appeal from the Marion Superior Court
The Honorable Timothy W. Oakes, Judge
Trial Court Cause No. 49D02-1701-PL-2865
Baker, Judge.
[1] We grant the petition for rehearing filed by Gregory Smith for the limited purpose of correcting a factual error on page 7 of our opinion. We stated that "Progressive filed a motion to consolidate the appeals," but, in fact, it was Smith who filed the motion to consolidate. Progressive S.E. Ins. Co. v. Smith, No. 19A-PL-1094, slip op. p. 7 (Ind. Ct. App. Jan. 2, 2020).
[2] As to the other issue raised by Smith in his petition for rehearing, we decline to grant his requested relief because his concern—that even if Progressive did not have a duty to defend Clayton, if it undertook his defense, it had a duty to do so
competently and in good faith—is addressed in footnote 7 of our original opinion:
The fact that Progressive did not have a duty to defend Clayton is not relevant to the questions at issue in the Malpractice or Bad Faith Actions related to the quality of the defense provided.
Id. at 10 n.7. Therefore, aside from the factual correction described above, we deny the petition for rehearing.
Bailey, J., and Tavitas, J., concur.