NIPSCO contracted Safway to build scaffolding. Safway’s employee, Nagel, was injured after he appeared to fall from scaffolding. Nagel sued NIPSCO and Safway paid NIPSCO’s defense costs.  Later, Nagel recalled being hit by a truck contracted under Headwaters. NIPSCO filed a Motion for Summary Judgment. The trial court granted the motion, but this Court reversed and remanded. After, Safway stopped paying NIPSCO.  NIPSCO settled the case with Nagel, then filed a Motion for Damages requesting defense costs, settlement costs, and instant action costs. The trial court found Safway and Headwaters jointly and severally liable for defense costs and instant action costs, but not settlement costs. Headwaters settled with NIPSCO.

NIPSCO argues Safway owes settlement costs and did not reserve the right to deny defense. Safway argues it does not owe settlement costs and reserved the right to deny defense through its insurer, ACE.  On cross-appeal, both Safway and ACE argue Safway does not owe defense costs or instant action costs. Safway also argues it should not be found jointly and severally liable. ACE also argues Safway’s policy is fully fronted so it does not owe anything.  In reply, NIPSCO argues Safway owes defense and instant action costs, Safway’s reservation of rights does not apply to its NIPSCO contract, and ACE’s policy is not fully fronted. It also states it will reduce costs by prior recoveries and settlements. In reply, Safway asks any liability be determined using a proportionate share method.

The scheduled panelists are Judge Mathias, Judge Brown, and Judge Kenworthy.