Bryan Builders, LLC v. The Cincinnati Casualty Company

FILED Sep 30 2025, 9:26 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

IN THE

Court of Appeals of Indiana Bryan Builders, LLC, and Amazon.com Services, LLC, Appellants-Defendants

v.

The Cincinnati Casualty Company, Fair Family Corporation, Steel Services, Inc., Atlantic Casualty Insurance Co., and Scottsdale Insurance, Appellees-Plaintiffs

September 30, 2025 Court of Appeals Case No. 24A-CT-1068 Appeal from the Hendricks Superior Court The Honorable Mark A. Smith, Judge Trial Court Cause No. 32D04-2210-CT-145

Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 1 of 25

Opinion by Judge Vaidik Judges Bailey and DeBoer concur.

Vaidik, Judge.

Case Summary [1] Parties to construction projects often include agreements to insure or waivers of

subrogation in their contracts in an effort to avoid liability by allocating it to an

insurer. The project owner and contractor here did so by incorporating

American Institute of Architects standard contracts into their master agreement,

which delegated insurance responsibilities to each of the parties and contained a

subrogation waiver. The agreement required the project owner to obtain all-risk

property insurance and provided that the owner and contractor waive all

subrogation rights against each other and any subcontractors or sub-

subcontractors for damages covered by property insurance. [2] After a fire broke out during construction, the contractor paid to repair the

project site. The property insurer didn’t pay anything because the damage

amounted to less than the deductible on the all-risk policy. Even so, because the

property damage falls within the all-risk policy’s coverage terms, we hold that

the damage was still “covered by property insurance” within the meaning of the

subrogation waiver. Thus, the waiver bars the contractor’s claim for

reimbursement for the repair costs. We therefore affirm the trial court’s grant of

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summary judgment to the subcontractor, the sub-subcontractor, and their

insurers.

Facts and Procedural History [3] In 2017, Amazon and Bryan Builders, LLC entered a Master Agreement for

construction projects nationwide. 1 This agreement incorporates standard

American Institute of Architects (AIA) Documents A102 and A201 with

various modifications. See Appellants’ App. Vol. 5 pp. 111, 142, 181, 249. The

Master Agreement creates a comprehensive risk-allocation scheme with two

key components: insurance requirements and a subrogation waiver.

The Master Agreement [4] Under Section 11.3 of the Master Agreement, Amazon, as Owner, must

maintain property insurance that “include[s] the interests of the Owner,

Contractor, Subcontractors and Sub-subcontractors as loss payees, as their

interests may appear” and provides “‘all-risk’ coverage,” including coverage

“against the perils of fire . . . and physical loss or damage.” Id. at 233. Amazon

obtained this coverage through ACE American Insurance Company (“ACE”),

taking out an all-risk policy (“Amazon’s All-Risk Policy”) with a $35 million

1 The dealings in this case involve several Amazon entities. The “Owner” in the Master Agreement is Amazon Corporate LLC. Appellants’ App. Vol. 5 p. 111. The named insureds on the property-insurance policy obtained under the Master Agreement are “Amazon.com, Inc. and any subsidiary, and Amazon.com, Inc.’s interest in any partnership or joint venture in which Amazon.com, Inc. has management control or ownership . . . .” Appellants’ App. Vol. 8 p. 245. And the “Owner” in the work order for the Plainfield project at issue here is appellant Amazon.com Services, LLC. Appellants’ App. Vol. 6 p. 73. The parties use “Amazon” to refer to these entities interchangeably, so we do the same.

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deductible. Amazon’s All-Risk Policy “insures against Direct Physical Loss

and/or Damage to property,” including “Property While in the Course of

Construction,” Appellants’ App. Vol. 9 pp. 6, 9, but it “does not include general

liability, workers compensation, or employers’ liability insurance,” Appellants’

Reply Br. p. 43. [5] Section 5.3.1 of the Master Agreement provides that if a subcontractor or sub-

subcontractor is hired to perform part of the work, their contracts “shall contain

provisions that . . . require the Subcontractor[ or] Sub-subcontractor . . . to carry

and maintain insurance coverage in amounts which are customary to the

industry and sufficient to protect the Owner.” Appellants’ App. Vol. 5 p. 214.

Although Section 5.3.1 doesn’t specify the type of insurance subcontractors and

sub-subcontractors must carry, Section 11.1 requires Bryan Builders to maintain

liability insurance and states that this same liability-insurance requirement

applies to any subcontractors and sub-subcontractors “[u]nless modified by an

applicable Work Order.” Id. at 233. [6] Regarding subrogation, the Master Agreement provides that Amazon and

Bryan Builders “waive all rights against . . . each other and any of their

subcontractors, sub-subcontractors, agents and employees, each of the other . . .

for damages caused by fire or other causes of loss occurring prior to Final

Completion to the extent . . . covered by property insurance obtained pursuant

to this Section 11.3 or other property insurance applicable to the Work . . . .” Id.

at 234. Amazon and Bryan Builders must require of any subcontractors or sub-

subcontractors “similar waivers each in favor of [the] other parties” to the

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project. Id. The Master Agreement states that a subrogation waiver is “effective

as to a person or entity even though that person or entity would otherwise have

a duty of indemnification, contractual or otherwise . . . .” Id. at 235.

The Project [7] In January 2022, Amazon and Bryan Builders signed a work order for Bryan

Builders to add a dehumidification unit to a warehouse in Plainfield. See

Appellants’ App. Vol. 6 p. 73. Amazon doesn’t own the warehouse—Ambrose

Plainfield Industrial IV, LLC does—but “Amazon.com, Inc.” is listed as the

“Tenant Guarantor” on the warehouse lease. Id. at 112. Bryan Builders then

entered into a subcontract agreement with Steel Services, Inc. (“the

Subcontract”) for Steel Services to provide certain labor and materials for the

dehumidification project. Steel Services later entered into an agreement with

Fair Family Corporation (“the Sub-subcontract”) to perform welding and other

work on the dehumidification project.

The Subcontract between Bryan Builders and Steel Services [8] Bryan Builders and Steel Services are the only parties to the Subcontract—

Amazon didn’t sign it. See Appellants’ App. Vol. 3 p. 109. Under Section 3.3.7

of the Subcontract, Steel Services agreed to, “at its own expense, fully protect,

insure, and secure its Work from injury or damage until final acceptance of the

Project and final payment.” Id. at 97. Steel Services must remedy “[a]ny

damage caused to [its] Work” and any “damage to the Work, person or

property of [Amazon], [Bryan Builders,] or others” caused by Steel Services’s

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operations. Id. Section 3.3.7 of the Subcontract further provides that Steel

Services “shall have primary responsibility and liability for and defend and

indemnify [Bryan Builders] against any damages or losses which may be

incurred or claimed.” Id. [9] The Subcontract provides that if its terms conflict with the terms of the Master

Agreement, the Subcontract’s terms control. See id. at 84. The Subcontract

originally contained a flow-down clause stating that Steel Services “agrees to be

bound to and to assume toward [Bryan Builders] all the obligations and

responsibilities” Bryan Builders has toward Amazon under the Master

Agreement. Id. at 85. But an addendum to the Subcontract deletes the flow-

down clause and states that “[a]ny references to [the Master Agreement] shall

be void.” Id. at 110. [10] In accordance with the Master Agreement’s insurance requirements, the

Subcontract obligates Steel Services to purchase and maintain liability

insurance. Any insurance policy “shall name [Bryan Builders and Amazon] as

Additional Insureds” and “waive all rights of subrogation in favor of [Bryan

Builders and Amazon].” Id. at 107-08. Bryan Builders’s and Amazon’s

additional-insured coverage is to “apply on a primary basis.” Id. at 108.

The Sub-subcontract between Steel Services and Fair Family [11] Only Steel Services and Fair Family—not Bryan Builders or Amazon—signed

the Sub-subcontract. See id. at 125. The Sub-subcontract provides that Fair

Family must indemnify Amazon and Steel Services against any claims for

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damage arising out of Fair Family’s work. See id. at 129. Like the Subcontract,

the Sub-subcontract requires Fair Family to carry liability insurance naming

Bryan Builders and Amazon as additional insureds and to “obtain from each of

its insurers a waiver of subrogation” in favor of Bryan Builders and Amazon.

Id. at 136. Bryan Builders’s and Amazon’s additional-insured coverage is to

“apply as primary insurance.” Id.

Steel Services’s and Fair Family’s Insurance Policies [12] In satisfaction of their insurance obligations under the Master Agreement and

their respective subcontracts, Steel Services had a liability-insurance policy with

The Cincinnati Casualty Company, and Fair Family had a policy with Atlantic

Casualty Insurance Co. Under both the Cincinnati Casualty and Atlantic

policies, the insurers “will pay those sums that the insured becomes legally

obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to

which this insurance applies.” Appellants’ App. Vol. 2 p. 109; Appellants’ App.

Vol. 4 p. 143. The policies include commercial general liability, umbrella

liability, worker’s compensation, and employer’s liability coverage.

The Fire and Aftermath [13] In June 2022, while Fair Family was performing welding work on the

warehouse project, a fire broke out, causing significant damage. Based on

several provisions of the Master Agreement making Bryan Builders responsible

for remedying any property damage caused by itself, a subcontractor, or sub-

subcontractor, see Appellants’ App. Vol. 5 pp. 208, 215, 229, Bryan Builders

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hired remediation contractors and paid approximately $1 million for emergency

clean up and decontamination. 2 Since the costs fell within the $35 million

deductible of Amazon’s All-Risk Policy with ACE, ACE didn’t make any

payments. [14] After the cleanup, Bryan Builders sought reimbursement from Steel Services

and Fair Family. When both companies and their insurers denied liability,

litigation ensued. Cincinnati Casualty filed a complaint for declaratory relief

against Bryan Builders, Amazon, and Fair Family seeking an order that

Amazon’s All-Risk Policy provided coverage for the fire damage. Multiple

counterclaims, cross-claims, and third-party complaints followed. Bryan

Builders, Cincinnati Casualty, and Atlantic each filed motions for summary

judgment, and Steel Services and Fair Family joined in Cincinnati Casualty’s

and Atlantic’s motions. [15] The trial court granted the insurance companies’ summary-judgment motions

and denied Bryan Builders’s motion. The court held that: (1) Amazon’s All-

Risk Policy “provides All Risk Coverage in favor of Bryan Builders, Steel

Services, and Fair Family for all damages due to the fire”; (2) the Master

Agreement’s subrogation waiver barred Bryan Builders’s claims against Steel

Services and Fair Family; and (3) in any event, “[n]either Amazon Services nor

Bryan Builders had standing” because “[n]either Amazon nor Bryan has the

2 Though the Master Agreement called for Bryan Builders to maintain insurance, it is unclear whether it did.

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right to recover for property damage to property they do not own.” Appellants’

App. Vol. 2 pp. 37-38. [16] Amazon and Bryan Builders now appeal. 3

Discussion and Decision [17] Amazon and Bryan Builders contend the trial court erred in denying Bryan

Builders’s summary-judgment motion and in granting Cincinnati Casualty and

Atlantic’s motions, in which Steel Services and Fair Family joined. We review

a motion for summary judgment de novo, applying the same standard as the

trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). That is, “The

judgment sought shall be rendered forthwith if the designated evidentiary

matter shows that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Ind. Trial Rule

3 We must mention the format of Amazon and Bryan Builders’s opening brief. Rather than typing out the text of the relevant contractual provisions, Amazon and Bryan Builders included screenshots of portions of the contracts as images. Their counsel states that the brief contains fewer than 14,000 words (the limit for an appellant’s brief under Indiana Appellate Rule 44) “as counted by the word processing system used to prepare the Brief,” Appellants’ Br. p. 81, as permitted by Appellate Rule 44(F). But given the number of screenshots in the brief (over 50) and the number of words in each screenshot (some containing hundreds of words), the text depicted in these images was not counted toward the word limit. Even without the screenshots, the brief is right around 14,000 words, so counting the text in the screenshots, the brief is thousands of words over the limit. Under Appellate Rule 44(C), the only portions of an appellant’s brief that may be excluded from the word count are the cover information, table of contents, table of authorities, signature block, certificate of service, and word count certificate. And Appellate Rule 44(F)’s statement that a party “may rely on the word count of the word processing system used to prepare the brief” does not mean that a party can omit the words in images of text if the word processing system used doesn’t include those words in its word count. Amazon and Bryan Builders thus should have counted the text in the screenshots toward their word limit and either made omissions to stay within the limit or moved for leave to file an oversized brief under Appellate Rule 44(B) (as they did for their reply brief). But the appellees haven’t moved to strike the brief or asked us to take any other remedial action, so we proceed on the brief as written.

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56(C). The interpretation of a contract is a question of law reviewed de novo,

with the goal of determining the parties’ intent when they made the agreement.

Franciscan All. Inc. v. Metzman, 192 N.E.3d 957, 963 (Ind. Ct. App. 2022). In

doing so, we must examine the contract’s plain language, read it in context,

and, whenever possible, construe it to render every word, phrase, and term

meaningful, unambiguous, and harmonious with the whole. Id.

I. Bryan Builders has standing to pursue its claims [18] We begin our analysis with standing. See Solarize Ind., Inc. v. S. Ind. Gas & Elec.

Co., 182 N.E.3d 212, 215 (Ind. 2022) (“Standing is a threshold issue: if it is

lacking, the court cannot consider the merits of the claim.”). Standing is an

issue of law that we review de novo. City of Gary v. Nicholson, 190 N.E.3d 349,

351 (Ind. 2022). Standing requires “a personal stake in the outcome of the

litigation” and “a direct injury as a result of the complained-of conduct.” Bd. of

Comm’rs of Union Cnty. v. McGuinness, 80 N.E.3d 164, 168 (Ind. 2017). [19] The trial court concluded that “[n]either Amazon Services nor Bryan Builders

had standing” because “[n]either Amazon nor Bryan has the right to recover for

property damage to property they do not own.” But Bryan Builders does have

standing. Its obligations under the Master Agreement and the costs it paid to

remedy the fire damage establish a personal stake in the outcome of the lawsuit

and constitute a direct injury. The Master Agreement makes Bryan Builders

responsible to Amazon for the acts and omissions of any subcontractors or sub-

subcontractors and requires Bryan Builders to repair at its own expense any

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damage caused by itself, a subcontractor, or a sub-subcontractor. After the fire,

Bryan Builders paid around $1 million to repair and remediate the damage and

is now seeking reimbursement for that amount. This constitutes a direct injury

and establishes a personal stake in the outcome of the case. The trial court

therefore erred in finding that Bryan Builders lacked standing.4 See Steury v. N.

Ind. Pub. Serv. Co., 510 N.E.2d 213, 215 (Ind. Ct. App. 1987) (“[T]he trial court

erred in determining that Steury lacked standing to bring this cause of action

against NIPSCO as Steury acted under compulsion for the protection of his

obligation under the contract . . . .”), reh’g denied.

II. The Master Agreement places the risk of fire loss on Amazon’s All-Risk Policy [20] To decide this case, we must examine the risk-allocation scheme in the Master

Agreement. “[W]hen a contract contains an agreement to insure or a waiver of

subrogation, the parties demonstrate their intent to avoid liability by allocating

it to an insurer.” U.S. Automatic Sprinkler Corp. v. Erie Ins. Exch., 204 N.E.3d 215,

223 (Ind. 2023). An agreement to insure is meant to provide the parties with the

benefits of insurance regardless of the cause of the loss—otherwise, each would

4 Amazon and Bryan Builders also argue that Amazon has standing and is a real party in interest, but we need not decide this issue as to Amazon. Amazon has not asserted a claim for the fire damage or requested reimbursement for the amount Bryan Builders paid—only Bryan Builders itself did. The only reason Amazon is a party to this litigation is because Cincinnati Casualty named Amazon as a defendant in its complaint for declaratory relief. Amazon never filed a counterclaim, cross-claim, or third-party complaint or moved for summary judgment. Because it has not attempted to invoke the court’s power, the standing and real-party-in- interest requirements do not apply to Amazon. But because Amazon was brought into the case by Cincinnati Casualty and had judgment entered against it by the trial court, it certainly has the right to be part of this appeal.

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provide its own insurance protection, and there would be no need for the

contract to place the duty on one of them. Id. at 222. “Like an agreement to

insure, a subrogation waiver signifies the contracting parties’ intent to recover

damages through insurance claims, not lawsuits . . . .” Id. (quotation omitted).

A. The Master Agreement incorporates American Institute of Architects contract language

[21] AIA form contracts are commonly used in the construction industry to outline

the terms for performance of work and the responsibilities of the parties to a

project. Amazon and Bryan Builders incorporated AIA Documents A102 and

A201 into the Master Agreement, particularly those sections setting forth

insurance requirements and waivers of subrogation. We have recognized that

these provisions “reveal[] a studied attempt by the parties to require

construction risks to be covered by insurance and to allocate among the parties

the burden of acquiring such insurance.” S. Tippecanoe Sch. Bldg. Corp. v.

Shambaugh & Son, Inc., 395 N.E.2d 320, 326 (Ind. Ct. App. 1979) (quotation

omitted), reh’g denied. [22] In South Tippecanoe, we concluded that AIA Document A201’s property-

insurance requirement and subrogation waiver demonstrated an intent that “the

parties were to be limited in recovery for property damage to the proceeds of the

insurance required to be carried under the contract, rather than to the individual

assets of a negligent Defendant.” Id. at 327-28. Similarly, in Performance Services,

Inc. v. Hanover Insurance Co., 85 N.E.3d 655, 664 (Ind. Ct. App. 2017), where we

examined the interplay between an AIA contract and several subcontracts, we

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observed, “The language of the contracts evidenced an intent of the parties to

allocate construction risks to their insurers—a business decision as to who

would pay if damage to property occurred during the Project.” [23] This “scheme of remedying construction losses through insurance claims, not

lawsuits,” Bd. of Comm’rs of Cnty. of Jefferson v. Teton Corp., 30 N.E.3d 711, 715

(Ind. 2015), not only protects those performing work on a project but also

benefits the project owner. If damage occurs during the work, a contractual

allocation of construction risks to property insurance avoids disputes among the

parties as to who must pay for the damage. And waivers of subrogation prevent

litigation among the parties and work stoppages caused thereby. Amazon and

Bryan Builders’s use of this scheme in the Master Agreement ensured that if a

fire or other accident causing damage occurred during construction, the work

would not have to stop while the parties decided who was responsible for the

damage. Instead, Amazon’s property insurance would pay for the damage

(once the deductible is met), and work could resume after cleanup.

B. The Master Agreement requires Amazon to provide all-risk property insurance with coverage “against the perils of fire”

[24] Under Section 11.3 of the Master Agreement, Amazon is responsible for

providing property insurance that “include[s] the interests of the Owner,

Contractor, Subcontractors and Sub-subcontractors as loss payees, as their

interests may appear.” Appellants’ App. Vol. 5 p. 233. This insurance must be

“‘all-risk’ coverage,” including coverage “against the perils of fire . . . and

physical loss or damage.” Id. Amazon’s All-Risk Policy with ACE “insures

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against Direct Physical Loss and/or Damage to property,” including “Property

While in the Course of Construction.” Appellants’ App. Vol. 9 pp. 6, 9. This is

the exact type of loss for which Bryan Builders is seeking reimbursement—

direct physical damage to the Plainfield warehouse project. [25] As noted above, Amazon’s property-insurance requirement under the Master

Agreement establishes that if a fire or other construction accident—like the one

here—occurred during the work, the property insurance would cover the

damage, regardless of what party caused the accident (with payment by the

insurer depending on whether the policy’s deductible is met). In accordance

with this risk-allocation scheme and the policy language, the fire damage here is

covered by Amazon’s All-Risk Policy. [26] We acknowledge that ACE didn’t pay for the damage here, but that’s not

because the damage isn’t covered by Amazon’s All-Risk Policy. Rather, ACE

didn’t pay because the cleanup and remediation costs totaled around $1 million,

but Amazon’s All-Risk Policy has a $35 million deductible.

C. Amazon and Bryan Builders waived their rights to subrogate against Steel Services and Fair Family for fire damage that is covered by property insurance

[27] Because the property damage here falls within the coverage of Amazon’s All-

Risk Policy, the subrogation waiver in the Master Agreement bars Bryan

Builders’s claims for recovery. The Master Agreement states that Amazon and

Bryan Builders “waive all rights against . . . each other and any of their

subcontractors[ and] sub-subcontractors . . . for damages caused by fire or other

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causes . . . to the extent . . . covered by property insurance obtained pursuant to

this Section 11.3.” Appellants’ App. Vol. 5 p. 234. This language is

“unambiguously broad.” U.S. Automatic Sprinkler, 204 N.E.3d at 221. It waives

Amazon’s and Bryan Builders’s rights to recover from each other,

subcontractors, and sub-subcontractors for fire damage “to the extent covered

by property insurance”—meaning Amazon’s All-Risk Policy. [28] In Teton, our Supreme Court examined the same subrogation waiver in an

earlier version of AIA Document A201. The Court held that the “Owner”

obtaining an “‘all-risk’ property insurance policy . . . triggers paragraph 11.3

coverage, and consequently triggers the subrogation waiver.” Teton, 30 N.E.3d

at 716 (footnote omitted). The Court found the Owner’s subrogation claim was

barred because the subrogation waiver “plainly applies to damages caused by

fire or other perils—without exception or distinction—to the extent covered by

property insurance.” Id. at 717. When Amazon took out its All-Risk Policy with

ACE as required by Section 11.3 of the Master Agreement, it triggered

Amazon’s and Bryan Builders’s waivers of their subrogation rights under the

Master Agreement. This waiver applies without exception to fire damage that is

covered by Amazon’s All-Risk Policy—including the fire damage here. The

subrogation waiver bars Bryan Builders’s claims for reimbursement.

D. Our interpretation of these provisions does not conflict with the rest of the Master Agreement

[29] Amazon and Bryan Builders contend the only interpretation of the Master

Agreement “that harmonizes and gives meaning to all of the terms” is that

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“when [Bryan] Builders itself does work on a project, Amazon’s All-Risk policy

will apply,” but “when Bryan Builders subcontracts out work to a third party, . .

. the Subcontractor and Sub-subcontractor must procure insurance which will

apply to that specific project.” Appellants’ Reply Br. p. 27. This interpretation

ignores the provisions requiring Amazon to procure property insurance that

includes the interests of subcontractors and sub-subcontractors and disregards

the subrogation waiver in favor of the subcontractors and sub-subcontractors. [30] Amazon and Bryan Builders support their interpretation by citing Section 5.3.1

of the Master Agreement, which they claim “sets out different insurance

responsibilities when a Subcontractor or Sub-subcontractor does the work.” Id.

at 15. But Section 5.3.1 simply states that any subcontract or sub-subcontract

shall “require the Subcontractor[ or] Sub-subcontractor . . . to carry and

maintain insurance coverage in amounts which are customary to the industry

and sufficient to protect the Owner.” Appellants’ App. Vol. 5 p. 214. It does not

state what type of insurance coverage the sub- and sub-subcontractors must

carry or that it replaces or overrides Amazon’s property-insurance requirement. [31] Section 11.1 of the Master Agreement, on the other hand, does specify what

kind of insurance subcontractors and sub-subcontractors must carry. This

section requires the contractor to maintain liability insurance, including

commercial general liability, employer’s liability, and worker’s compensation

coverage, and states that subcontractors and sub-subcontractors must also

comply with these insurance requirements. See id. at 232-33. Amazon and

Bryan Builders acknowledge that Amazon’s All-Risk Policy “does not include

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general liability, workers compensation, or employers’ liability insurance.”

Appellants’ Reply Br. p. 43. Because Amazon’s All-Risk Policy does not

provide the same coverage as the insurance required of subcontractors and sub-

subcontractors under the Master Agreement, we reject Amazon and Bryan

Builders’s argument that the All-Risk Policy does not apply when

subcontractors or sub-subcontractors work on the project. [32] Amazon and Bryan Builders also claim the subrogation waiver doesn’t apply

because “nothing was paid by an insurer,” so “none of the damages have been

‘covered by’ any property insurance” within the meaning of the waiver

provision. Appellants’ Br. p. 58. This conflates coverage with payment. South

Tippecanoe directly refutes this argument. There, we held that the subrogation

waiver (“The Owner and Contractor waive all rights against each other for

damages caused by fire or other perils to the extent covered by insurance

provided under this Paragraph 11.3 . . . .”) applied to both the amounts paid out

under the owner’s property-insurance policy and the $1,000 deductible paid by

the owner. S. Tippecanoe, 395 N.E.2d at 323. We noted that the owner “became

the insurer of the other contracting parties to the extent of the deductible.” Id. at

334. Thus, even though the $1,000 was paid by the owner itself, not its property

insurer, it was still “covered by” the property insurance such that the

subrogation waiver barred recovery for that amount. [33] Again, the reason ACE didn’t pay for the damages here is that Bryan Builders’s

cleanup costs (around $1 million) were less than the deductible under Amazon’s

All-Risk Policy ($35 million). Like the $1,000 deductible in South Tippecanoe,

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even though ACE didn’t pay the $1 million, that amount is still covered by the

All-Risk Policy under the Master Agreement’s subrogation waiver, and thus the

waiver applies.

III. The Subcontract and Sub-subcontract don’t override or replace the Master Agreement [34] In an attempt to avoid the waivers of their subrogation rights and Amazon’s

insurance obligation under the Master Agreement, Amazon and Bryan Builders

point to several provisions in the Subcontract and Sub-subcontract. These

arguments ultimately fail, but we address each in turn.

A. The Subcontract doesn’t alter Amazon’s obligations under the Master Agreement because Amazon wasn’t a party to the Subcontract

[35] Amazon and Bryan Builders cite Section 3.3.7 of the Subcontract, which

provides that Steel Services “shall promptly remedy” “damage caused by [its]

operations.” Appellants’ App. Vol. 3 p. 97. Amazon and Bryan Builders claim

this provision “establishes that . . . Steel Services . . . is responsible for all

damages on the Project caused by itself or its third-party Sub-subcontractors.”

Appellants’ Br. p. 48. But the Subcontract doesn’t eliminate Amazon’s

obligations under the Master Agreement, particularly the obligation that

Amazon’s All-Risk Policy must provide coverage against the perils of fire and

physical loss or damage. [36] First, Amazon didn’t sign the Subcontract. Bryan Builders cannot unilaterally

alter Amazon’s obligations under the Master Agreement via the Subcontract

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because Amazon was not a party to the Subcontract. Additionally, while the

Subcontract originally contained a flow-down clause stating that Steel Services

assumed toward Bryan Builders all the obligations and responsibilities Bryan

Builders had toward Amazon under the Master Agreement, the Subcontract

addendum deleted the flow-down clause. See Appellants’ App. Vol. 3 p. 110.

Notwithstanding Section 3.3.7 of the Subcontract, Amazon’s All-Risk Policy is

still responsible for the fire damage under the Master Agreement (to the extent

the policy’s deductible is met).

B. The Master Agreement’s subrogation waiver applies over Steel Services’s duties of indemnification in the Subcontract

[37] Amazon and Bryan Builders also claim that Steel Services’s indemnification

duties under the Subcontract make Steel Services responsible for the fire

damage. The Subcontract provides that Steel Services “shall have primary

responsibility and liability for and defend and indemnify [Bryan Builders]

against any damages or losses which may be incurred or claimed.” Id. at 97.

Amazon and Bryan Builders contend this duty to indemnify Bryan Builders was

“triggered” because Bryan Builders had a “legal obligation” under the Master

Agreement to pay for the repairs. Appellants’ Br. p. 67. [38] While the Master Agreement contains provisions making Bryan Builders

responsible for remedying any property damage caused by itself, a

subcontractor, or sub-subcontractor, see Appellants’ App. Vol. 5 pp. 208, 215,

229, it also states, “A waiver of subrogation shall be effective as to a person or

entity even though that person or entity would otherwise have a duty of

Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 19 of 25

indemnification, contractual or otherwise,” id. at 235. Amazon’s and Bryan

Builders’s waivers of their subrogation rights in the Master Agreement apply

regardless of Steel Services’s duties of indemnification under the Subcontract.

C. Steel Services’s unfamiliarity with the Master Agreement’s contents does not render the Master Agreement inapplicable

[39] Amazon and Bryan Builders highlight that Steel Services hadn’t seen the

Master Agreement before signing the Subcontract and that the Subcontract

addendum strikes all references to the Master Agreement. They argue that

because Amazon’s All-Risk Policy is provided for in the Master Agreement,

and Steel Services wasn’t aware of the contents of the Master Agreement, the

All-Risk Policy shouldn’t apply to Steel Services. But whether Steel Services

knew of the All-Risk Policy when it entered into the Subcontract doesn’t change

that Amazon agreed to provide all-risk property insurance including the

interests of any subcontractors or sub-subcontractors, which includes Steel

Services. As the trial court observed, “The Subcontract between Bryan Builders

and Steel Services did not waive any right of Steel Services to the All-Risk

Coverage that Amazon was required to provide in favor of all contractors and

subcontractors, including Steel Services and Fair Family.” Appellants’ App.

Vol. 2 p. 37. Put differently, the Subcontract addendum striking references to

the Master Agreement doesn’t override Amazon’s All-Risk Policy or remove

Steel Services as a beneficiary of that policy. [40] Using the same reasoning, Amazon and Bryan Builders argue that the Master

Agreement’s subrogation waiver shouldn’t apply in favor of Steel Services

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because Steel Services was only aware of the subrogation waiver in the

Subcontract, not the one in the Master Agreement. We rejected a similar

argument in Performance Services. There, Southwest Dubois County School

Corporation hired a construction manager to oversee renovations to one of its

schools. The “Construction Manager Contract” incorporated a version of AIA

Document A201 under which “Southwest and the Construction Manager

agreed to waive all subrogation rights against each other and all contractors for

any damage that might occur during the Project that was covered by property

insurance.” Performance Servs., 85 N.E.3d at 657-58. Southwest later contracted

with Performance Services, Inc. (PSI) to complete part of the construction. That

contract didn’t include a subrogation waiver or incorporate the Construction

Manager Contract by reference, instead including an integration clause. [41] When Southwest’s property insurer, Hanover, brought a subrogation action for

damage that occurred during construction, PSI and a subcontractor argued that

the action was barred by the subrogation waiver in the Construction Manager

Contract. Hanover countered that because “the PSI Contract was a separate

and distinct contract executed over 15 months after the Construction Manager

Contract, . . . the PSI Contract, along with the Huntingburg Subcontract (which

incorporates the PSI Contract), are the controlling agreements.” Id. at 659

(quotations omitted). We held that “[t]he total effect of all the contracts was to

distribute the risks incidental to the Project to an insurance carrier” and that

“[t]he language of the Construction Manager Contract supports the conclusion

that the intent of the parties was to waive all subrogation claims against

Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 21 of 25

contractors and subcontractors”; “[t]he absence of waiver-of-subrogation

language and the inclusion of an integration clause in the PSI Contract d[id] not

convince us otherwise.” Id. at 664. [42] Like Hanover in Performance Services, Amazon and Bryan Builders try to evade

the subrogation waiver in the Master Agreement by claiming that the Master

Agreement doesn’t apply because it was excluded from the Subcontract. But

although the Subcontract addendum strikes all references to the Master

Agreement, nothing in the Subcontract alters the Master Agreement or restores

Amazon’s or Bryan Builders’s subrogation rights. Amazon and Bryan Builders

waived all subrogation rights against any subcontractors and sub-subcontractors

in the Master Agreement, and they are bound by that waiver.

D. There is no conflict between the Master Agreement’s subrogation waiver and the subrogation waivers in the Subcontract and Sub- subcontract

[43] Amazon and Bryan Builders also contend “the Waiver of Subrogation

provisions in the 2022 Subcontract and Sub-subcontract govern.” Appellants’

Reply Br. p. 27. They claim the Master Agreement’s subrogation waiver does

not apply because it conflicts with Steel Services’s and Fair Family’s waivers in

favor of Amazon and Bryan Builders in the Subcontract and Sub-subcontract.

But no conflict exists. Under the Master Agreement, Amazon and Bryan

Builders waived their subrogation rights against each other and any

subcontractors or sub-subcontractors. As explained above, this means that

Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 22 of 25

Amazon and Bryan Builders cannot seek reimbursement from each other, Steel

Services, or Fair Family for damages covered by Amazon’s All-Risk Policy. [44] The Subcontract and Sub-subcontract require Steel Services and Fair Family,

respectively, to waive their subrogation rights in favor of Amazon and Bryan

Builders. These waivers do not conflict with the Master Agreement’s

subrogation waiver; they merely impose the same limitations for recovery on

Steel Services and Fair Family as the Master Agreement does on Amazon and

Bryan Builders. In a situation where Steel Services’s or Fair Family’s insurance

covered a loss, these waivers would prevent them (and their insurers) from

seeking reimbursement from Amazon or Bryan Builders for the loss—just as

Amazon and Bryan Builders can’t seek reimbursement from Steel Services or

Fair Family when the All-Risk Policy applies.

IV. The Cincinnati Casualty and Atlantic insurance policies do not apply [45] Amazon and Bryan Builders spend much of their brief arguing that the

Cincinnati Casualty and Atlantic policies—not Amazon’s All-Risk Policy—

must cover the damage here. Under these policies, Cincinnati Casualty and

Atlantic “will pay those sums that the insured becomes legally obligated to pay

as damages because of ‘bodily injury’ or ‘property damage’ to which this

insurance applies.” Appellants’ App. Vol. 2 p. 109; Appellants’ App. Vol. 4 p.

143. In other words, these policies apply only when there is liability by the

insureds. But there is no liability by Steel Services or Fair Family here. As

Atlantic explains, Steel Services and Fair Family “cannot have liability due to

Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 23 of 25

the parties’ agreement to shift the risk of loss by fire to property insurance, and

the waiver/release of claims against each other.” Atlantic’s Br. pp. 44-45. And

“[w]here liability is impossible, liability coverage is impossible.” Id. at 20. [46] Yet Amazon and Bryan Builders contend the Cincinnati Casualty and Atlantic

policies apply because the subcontracts and policy documents provide that these

policies are “primary” and “not contributory.” Appellants’ Br. pp. 50, 57. But

the “primary” and “not contributory” language matters only when multiple

policies cover the same loss. As just explained, the Cincinnati Casualty and

Atlantic policies do not apply here because Steel Services and Fair Family are

not liable for the fire damage. Amazon’s All-Risk Policy alone covers the

damage. [47] For these reasons, the court properly granted Cincinnati Casualty’s and

Atlantic’s motions for summary judgment and denied Bryan Builders’s motion

for summary judgment. 5 [48] Affirmed.

5 In response to Cincinnati Casualty’s supplemental motion for summary judgment, Amazon and Bryan Builders designated, among other evidence, an affidavit from Meredith Philipp, Amazon Services’s Corporate Counsel for Construction. Cincinnati Casualty moved to strike Philipp’s affidavit, which the trial court granted. On appeal, Amazon and Bryan Builders argue the trial court abused its discretion in striking Philipp’s affidavit. But even if the affidavit hadn’t been stricken, we would still affirm the trial court’s grant of summary judgment for Cincinnati Casualty because the substance of the affidavit has no bearing on our conclusions.

Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 24 of 25 Bailey, J., and DeBoer, J., concur.

ATTORNEYS FOR APPELLANTS Terrence L. Brookie Maggie L. Smith Joshua N. Kutch Frost Brown Todd LLP Indianapolis, Indiana

ATTORNEYS FOR APPELLEE THE CINCINNATI CASUALTY COMPANY Jerry E. Huelat David A. Mack Robert J. Penny Huelat & Mack, P.C. LaPorte, Indiana

ATTORNEYS FOR APPELLEE FAIR FAMILY CORPORATION Scott B. Cockrum Candace C. Dickson Lewis Brisbois Bisgaard & Smith LLP Highland, Indiana

ATTORNEYS FOR APPELLEE STEEL SERVICES, INC. Evan M. Norris Daniel M. Drewry Drewry Simmons Vornehm, LLP Carmel, Indiana

ATTORNEYS FOR APPELLEE ATLANTIC CASUALTY INSURANCE CO. David L. Taylor Audrey L. Smith Taylor DeVore P.C. Carmel, Indiana

Court of Appeals of Indiana | Opinion 24A-CT-1068 | September 30, 2025 Page 25 of 25