971 N.E.2d 127
Ind. Ct. App.2012Background
- Michiana and the Church contracted for a two‑story church addition including a gymnasium.
- The contract contains a waiver of subrogation (11.4.7) for damages covered by property insurance, in favor of the listed parties.
- “Work” is defined as the construction and services required by the Contract Documents, potentially including parts of the Project performed by others.
- The gym floor installation is described in the contract under “Alternative Costs” with two options, including a wood floor, but no explicit confirmation of Church approval or Michiana installation.
- The Church installed the wooden gym floor atop the poured concrete without Michiana’s participation; a sprinkler pipe later froze, destroying the wooden floor, and Brotherhood paid the claim as subrogee.
- The trial court granted summary judgment for Appellees on the waiver/Work issues; Brotherhood appeals seeking a contrary construction and remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the wooden gym floor falls within the contract’s Scope of Work | Brotherhood argues the wood floor was not ‘Work’ under the contract. | Michiana contends the wooden floor was part of the Work and within the waiver. | No; floor installation not within the defined Work, not covered by the waiver. |
| Whether the contract’s alternative-cost provision and lack of Church approval affect the waiver scope | Brotherhood maintains the timber floor was not an agreed Work item. | Appellees argue the alternative-costs were part of Work if agreed. | Not established as Work; cannot be added to the contract’s scope for waiver. |
Key Cases Cited
- Midwestern Indemnity Co. v. System Builders, Inc., 801 N.E.2d 661 (Ind. App. 2004) (waiver of subrogation context in construction contracts)
- Town of Silverton v. Phoenix Heat Source System, Inc., 948 P.2d 9 (Colo. App. 1997) (discusses subrogation waiver scope in construction)
- Four Seasons Mfg., Inc. v. 1001 Coliseum, LLC, 870 N.E.2d 494 (Ind. Ct. App. 2007) (court will not read provisions to include unagreed terms)