IN THE
Court of Appeals of Indiana
Garvin Street Warehouse, LLC and KSAB, LLC,
FILED
Appellants-Plaintiffs Jul 15 2026, 10:39 am
CLERK
v. Indiana Supreme Court
Court of Appeals
and Tax Court
Bridgeway Insurance Company, Ascot Specialty Insurance
Company, Certain Underwriters at Lloyd’s of London,
Insurance Effected with Ascot Syndicate No. 1414, Certain
Subscribing Lloyd’s Underwriters, Trisura Specialty Insurance
Company, General Security Indemnity Company of Arizona,
Western World Insurance Company, and National Fire &
Marine Insurance Company,
Appellees-Defendants
July 15, 2026
Court of Appeals Case No.
25A-PL-2272
Appeal from the Vanderburgh Superior Court
The Honorable Thomas A. Massey, Judge
Court of Appeals of Indiana Opinion 25A-PL-2272 July 15, 2026 Page 1 of 24
Trial Court Cause No.
82D07-2409-PL-5402
Opinion by Chief Judge Tavitas
Judge Foley concurs.
Judge Weissmann concurs in result with separate opinion.
Tavitas, Chief Judge.
Case Summary
[1] In this Commercial Court case, Garvin Street Warehouse, LLC, and KSAB,
LLC (collectively, “Garvin”) appeal the trial court’s denial of Garvin’s motion
for partial summary judgment and the grant of a cross-motion for judgment on
the pleadings filed by the defendant insurers (“Insurers”). 1 After the sprinkler
system at Garvin’s warehouse malfunctioned, Garvin attempted to have the
system repaired. Before the repairs could be completed, however, the
warehouse caught fire and was destroyed. Insurers denied Garvin’s claims
pursuant to a Protective Safeguards Endorsement (“PSE”) of the policy, which
required Garvin to notify Insurers of issues with the sprinkler system within
forty-eight hours—a requirement Garvin failed to satisfy. Garvin then filed a
complaint against Insurers.
1
Insurers include Bridgeway Insurance Company, Ascot Specialty Insurance Company, Certain
Underwriters at Lloyd’s of London, Insurance Effected with Ascot Syndicate No. 1414, Certain Subscribing
Lloyd’s Underwriters, Trisura Specialty Insurance Company, General Security Indemnity Company of
Arizona, Western World Insurance Company, and National Fire & Marine Insurance Company.
Court of Appeals of Indiana Opinion 25A-PL-2272 July 15, 2026 Page 2 of 24 [2] Garvin filed a motion for partial summary judgment, arguing that Insurers were
required to demonstrate prejudice due to Garvin’s failure to comply with the
PSE. In response, Insurers filed a cross-motion for judgment on the pleadings.
The trial court found that Insurers were not required to demonstrate prejudice
and, thus, denied Garvin’s motion for partial summary judgment and granted
Insurers’ motion for judgment on the pleadings. We affirm the trial court. 2
Issue
[3] On appeal, we address the following issues:
I. Whether the trial court properly denied Garvin’s
motion for partial summary judgment.
II. Whether the trial court properly granted Insurers’ crossmotion for judgment on the pleadings.
Facts
[4] The facts here are undisputed. Garvin owns a warehouse in Evansville, and
Insurers are the primary and excess insurers of the property. On December 23,
2022, a maintenance contractor discovered that one of the twenty risers in
Garvin’s warehouse sprinkler system was frozen and broken. On December 27,
2022, the contractor met with a sprinkler services company, which was unable
2
We held oral argument on this matter on May 11, 2026. We thank counsel for their presentations.
Court of Appeals of Indiana Opinion 25A-PL-2272 July 15, 2026 Page 3 of 24
to complete the repairs at that time. The repairs were rescheduled for January
2, 2023. On December 31, 2022, the warehouse caught fire and was destroyed. 3
[5] After Garvin notified Insurers of the fire, Insurers denied the claim because
Garvin failed to comply with the PSE portion of the commercial insurance
policies, which provided:
A. The following is added to the Commercial Property
Conditions:
Protective Safeguards
3
Appellants’ Brief states that a “riser” is “a vertical pipe that supplies water to elevated horizontal pipes with
sprinkler heads.” Appellants’ Br. p. 8 n.3. Appellants’ Brief further states:
The Amended Complaint refers to the burst pipe as the same as a riser, stating that one of
twenty risers froze and broke. Technically, it was a horizontal pipe that froze, which required
the riser supplying water to the broken pipe to be shut off. The riser was not the pipe that froze.
Id. at p. 11 n.7.
Court of Appeals of Indiana Opinion 25A-PL-2272 July 15, 2026 Page 4 of 24
1. As a condition of this insurance, you are required to maintain
the protective devices or services listed in the Schedule above.
2. The protective safeguards to which this endorsement applies
are identified by the following symbols:
“P-1” Automatic Sprinkler System, including related
supervisory services.
Automatic Sprinkler System means:
a. Any automatic fire protective or extinguishing system . . . .
*****
“P-9”, the protective system described in the Schedule.
B. The following is added to the Exclusions section . . .
We will not pay for loss or damage caused by or resulting from
fire if, prior to the fire, you:
1. Knew of any suspension or impairment in any protective
safeguard listed in the Schedule above and failed to notify us of
that fact; or
2. Failed to maintain any protective safeguard listed in the
Schedule above, and over which you had control, in complete
working order.
If part of an Automatic Sprinkler System or Automatic
Commercial Cooking Exhaust And Extinguishing System is shut
off due to breakage, leakage, freezing conditions or opening of
Court of Appeals of Indiana Opinion 25A-PL-2272 July 15, 2026 Page 5 of 24
sprinkler heads, notification to us will not be necessary if you can
restore full protection within 48 hours.
Appellants’ App. Vol. III pp. 45-46 (emphasis in original). It is undisputed that
Garvin did not notify Insurers of the issue with the sprinkler system within
forty-eight hours as required by the PSE.
[6] In June 2024, Garvin filed a complaint against Insurers for declaratory
judgment, breach of contract, and reformation. 4 Garvin alleged that Insurers
were required to demonstrate actual prejudice from Garvin’s failure to notify
them of the issue with the sprinkler system within forty-eight hours. Garvin
argued that Insurers were not prejudiced and that, “[e]ven if notice of the riser
issue had been provided, the insurers would not have actually done anything
differently.” Appellants’ App. Vol. II p. 82.
[7] In March 2025, Garvin filed a motion for partial summary judgment. 5 Garvin
argued that, under Miller v. Dilts, 463 N.E.2d 257 (Ind. 1984), Insurers must
“prove actual prejudice when policyholders fail to communicate with them and
violate the cooperation clause.” Appellants’ App. Vol. II p. 174. Garvin
contended that “[t]he same analysis should apply when determining whether
the insurer can properly deny a claim when a policyholder does not notify the
insurer within 48 hours that a small portion of the automatic sprinkler system
4
Garvin amended the complaint in February 2025 to correct a party. The policies were attached to the
amended complaint as exhibits.
5
Garvin designated the affidavit of Stewart Klipsch, a member of KSAB, LLC, which owns Garvin Street
Warehouse, LLC. The policies were attached to the affidavit.
Court of Appeals of Indiana Opinion 25A-PL-2272 July 15, 2026 Page 6 of 24
was temporarily inoperable.” Id. Garvin argued: “Allowing carriers to deny
coverage based on a lack of notice even though they are not prejudiced is
simply unjust.” Id. at 178. Garvin, however, admitted that “Indiana law has
never addressed this question head on . . . .” Id. at 184.
[8] In response to Garvin’s motion for partial summary judgment, Insurers filed a
response and a cross-motion for judgment on the pleadings. Insurers argued
that Garvin did not comply with the PSE when it failed to provide timely notice
of the impairment of the system to Insurers. Insurers argued that the prejudice
cases cited by Garvin involved post-loss policy conditions, such as failure to
cooperate and failure to provide timely notice of a claim after the insured had
incurred a loss, and that these cases have not been applied to pre-loss policy
conditions.
[9] After a July 2025 hearing, the trial court entered an order on August 13, 2025,
denying Garvin’s motion for partial summary judgment and granting Insurers’
cross-motion for judgment on the pleadings. The trial court found that Insurers
were not required “to show prejudice by [Garvin’s] failure to notify before
[Insurers] can deny coverage under the Policy.” Id. at 41. Because Insurers
were not required to show that they were prejudiced, Garvin’s failure to notify
Insurers of the problem with the sprinkler system alone precluded coverage.
Garvin now appeals.
Court of Appeals of Indiana Opinion 25A-PL-2272 July 15, 2026 Page 7 of 24
Discussion and Decision
I. The trial court properly denied Garvin’s motion for partial summary
judgment.
A. Standard of Review
[10] Garvin appeals the denial of its motion for partial summary judgment. “We
review summary judgment decisions de novo, and Trial Rule 56(C) supplies the
framework.” Cave Quarries, Inc. v. Warex LLC, 240 N.E.3d 681, 684 (Ind. 2024).
“The moving party is entitled to summary judgment only if the evidence it
designates in support of its motion ‘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.’” Id. at 684-85 (quoting Ind. Trial Rule 56(C)). The purpose of
summary judgment is to withdraw issues from the jury only when there are no
genuine material factual issues for the jury to decide. Id. at 685. “Summary
judgment is available when the nonmovant cannot prove its claim based on the
undisputed evidence[.]” Id. (emphasis in original).
[11] The summary judgment movant has the initial burden of making a prima facie
showing that no genuine issue of material fact exists and that it is entitled to
judgment as a matter of law. Isgrig v. Trs. of Indiana Univ., 256 N.E.3d 1238,
1244 (Ind. 2025). The burden then shifts to the non-moving party to show the
existence of a genuine issue of material fact. Id. On appellate review, we
“draw all reasonable inferences in favor of the non-moving party.” Wilson v.
Anonymous Defendant 1, 183 N.E.3d 289, 293 (Ind. 2022).
Court of Appeals of Indiana Opinion 25A-PL-2272 July 15, 2026 Page 8 of 24 [12] Here, the parties’ arguments require that we interpret the language of the
insurance policy. “In Indiana, insurance contracts are subject to the same rules
of interpretation as other contracts.” Ebert v. Illinois Cas. Co., 188 N.E.3d 858,
864 (Ind. 2022). “Ordinarily, we construe ambiguous policy provisions in favor
of the insured, especially if the ‘provisions limiting coverage are not clearly and
plainly expressed.’” Id. (quoting Meridian Mut. Ins. Co. v. Auto-Owners Ins. Co.,
698 N.E.2d 770, 773 (Ind. 1998)). “On the other hand, we give clear and
unambiguous language in a policy its plain and ordinary meaning.” Id. “A
policy is unambiguous if reasonable persons cannot honestly differ as to its
meaning.” Id.
B. Insurers were not required to show prejudice.
[13] Garvin argues that Insurers were required to show that Insurers were prejudiced
by Garvin’s failure to comply with the PSE requirements. Protective safeguards
endorsements commonly found in insurance policies require an insured to
maintain various protective services, such as sprinkler systems, fire alarms,
burglar alarms, and watchman services. Holiday Hosp. Franchising, Inc. v. AMCO
Ins. Co., 983 N.E.2d 574, 580 n.7 (Ind. 2013). Generally, these safeguards are
required under policies in exchange for reduced premiums on property damage
coverage. Id. “An endorsement is ancillary to an insurance policy and it must
be read together, construed, and reconciled with the policy to give effect to the
whole.” Stevenson v. Hamilton Mut. Ins. Co., 672 N.E.2d 467, 473 (Ind. Ct. App.
1996), trans. denied.
Court of Appeals of Indiana Opinion 25A-PL-2272 July 15, 2026 Page 9 of 24 [14] Proof of prejudice as it relates to notice of pre-loss conditions, such as issues
with protective safeguards endorsements, has not been considered by Indiana
courts. Indiana cases, however, have extensively discussed the requirement of
prejudice to the insurance company in the context of post-loss notice and postloss cooperation provisions. Post-loss notice provisions require the insured to
timely inform the insurance company of claims for insurance coverage and
lawsuits against the insured, which “assist the insurance company by giving it
an opportunity to make a timely and adequate investigation during its
preparation for settlement or trial.” Paint Shuttle, Inc. v. Cont’l Cas. Co., 733
N.E.2d 513, 521 (Ind. Ct. App. 2000), trans. denied. On the other hand, a postloss “cooperation clause essentially requires the insured to assist the insurance
company in its preparation for settlement or trial.” Id. “An insured’s
responsibilities under the cooperation clause of an insurance policy involve
attending hearings and trials, assisting in effecting settlement, securing and
giving evidence, and obtaining the attendance of witnesses.” Id.
[15] In Miller v. Dilts, 463 N.E.2d 257 (Ind. 1984), our Supreme Court considered
three cases involving these post-loss notice provisions. In each case, the insured
failed to give prompt notice of accidents or lawsuits, and the Court considered
“whether there is a difference between a duty to give prompt notice and a duty
to cooperate in an automobile insurance policy.” Id. at 260.
[16] “[T]he duties to notify and to cooperate are conditions precedent to the
insurance company’s liability to its insured.” Id. at 260-61. The Miller Court
noted that, where an insured fails to comply with an insurance policy’s
Court of Appeals of Indiana Opinion 25A-PL-2272 July 15, 2026 Page 10 of 24
cooperation clause, the insurance company “must show actual prejudice from
an insured’s noncompliance with the policy’s cooperation clause before it can
avoid liability under the policy.” Id. at 261 (emphasis added). The issue in
Miller, however, was whether insurance companies must also show “actual
prejudice” where the insured fails to comply with a post-loss notice provision,
rather than a post-loss cooperation clause.
[17] The Miller Court noted that federal courts have considered the issue in the
context of Indiana law and determined that the lack of prompt post-loss notice
gives rise to a presumption of prejudice to the insurance company. The Court
found the federal decisions “to be sound and well grounded in Indiana law.”
Id. at 263. “[L]ate notice given to an insurer places it in a position that could
have been avoided through timely notice, and that the ‘most cooperative
insured cannot erase this prejudice suffered by the insurer’ in situations where
the scene of the accident changes, or witnesses move away or have their
memories lapse, due to the passage of time.” Id. at 265 (quoting Indiana Ins. Co.
v. Williams, 448 N.E.2d 1233, 1238 (Ind. Ct. App. 1983) (Hoffman, J.,
dissenting), vacated sub nom., Miller, 463 N.E.2d 257).
[18] The Court held:
[T]he notice provisions in insurance policies are not equivalent to
the cooperation clauses and do not serve the same objectives.
Failure to cooperate can come about in many ways, some of
which may be technical and inconsequential, thereby resulting in
no prejudice to the insurance company. An insurance company
must show actual prejudice from an insured’s noncompliance
with the policy’s cooperation clause before it can avoid
Court of Appeals of Indiana Opinion 25A-PL-2272 July 15, 2026 Page 11 of 24
liability under the policy. . . . The same cannot be said of the
notice provision because, as Judge Hoffman stated, “[n]otice is a
threshold requirement which must be met before an insurer is
even aware that a controversy or matter exists which requires the
cooperation of the insured.” The notice requirement is
“material, and of the essence of the contract.” [London Guarantee
& Acc. Co. v. Siwy, 66 N.E. 481, 482 (Ind. Ct. App. 1903)]. The
requirement of prompt notice gives the insurer an opportunity to
make a timely and adequate investigation of all the
circumstances surrounding the accident or loss. This adequate
investigation is often frustrated by a delayed notice. Prejudice to
the insurance company’s ability to prepare an adequate defense
can therefore be presumed by an unreasonable delay in
notifying the company about the accident or about the filing of
the lawsuit. This is not in conflict with the public policy theory
that the court should seek to protect the innocent third parties
from attempts by insurance companies to deny liability for some
insignificant failure to notify. The injured party can establish
some evidence that prejudice did not occur in the particular
situation. Once such evidence is introduced, the question
becomes one for the trier of fact to determine whether any
prejudice actually existed. The insurance carrier in turn can
present evidence in support of its claim of prejudice. Thus, both
parties are able to put forth their respective positions in the legal
arena.
Id. at 265-66 (emphasis added). The Court, thus, held that, in situations of an
insured’s noncooperation, the insurance company is required to demonstrate
actual prejudice. An insured’s failure to give prompt notice of a claim,
however, raises a presumption of prejudice to the insurance company and that
presumption may be rebutted by the insured.
[19] Following Miller, our Supreme Court considered related arguments in several
opinions. In Morris v. Econ. Fire & Cas. Co., 848 N.E.2d 663 (Ind. 2006), after a
Court of Appeals of Indiana Opinion 25A-PL-2272 July 15, 2026 Page 12 of 24
claim was submitted, the insurance company demanded that the insureds
produce certain documents and records and submit to an examination under
oath, and the insureds refused to do so. On appeal, our Supreme Court
clarified that this case did not involve a “cooperation clause”; rather, this case
involved an “entirely separate condition that explicitly requires the policyholder
to perform specific duties.” Morris, 848 N.E.2d at 666. The Court held: “While
disputes regarding alleged breaches of an insured’s duty under a separate
‘cooperation clause’ may necessitate consideration of resulting prejudice to the
insurance company, such prejudice is not a necessary consideration in
determining the enforceability of other insurance policy provisions.” Id.
(citing Miller, 463 N.E.2d at 265). The Court concluded that the insureds
“breached the contract as a matter of law.” 6 Id. at 666-67.
[20] In Sheehan Construction Co., Inc. v. Continental Casualty Co., 938 N.E.2d 685 (Ind.
2010), on rehearing, our Supreme Court again applied Miller where the insured
failed to notify the insurance company of a claim for almost two years. Because
the notice of claim was untimely, prejudice to the insurance company was
presumed, and the insured failed to present any evidence rebutting that
presumption. Id. at 689. Accordingly, the Court held that summary judgment
was properly granted to the insurance company. See also Stacy v. ASI Select Ins.
Corp., 242 N.E.3d 525, 534 (Ind. Ct. App. 2024) (“Because ASI was prevented
6
The Court noted that the insureds did not “alternatively contend that the breach was immaterial.” Id. at
667.
Court of Appeals of Indiana Opinion 25A-PL-2272 July 15, 2026 Page 13 of 24
from meaningfully investigating the claim due to the unreasonably late notice,
Stacy failed in rebutting the presumption of prejudice in favor of ASI.”).
[21] Our Supreme Court’s holdings, thus, provide: (1) where the post-loss notice of
claim is untimely, prejudice to the insurance company is presumed and may be
rebutted by the insured; (2) where the insured violates a cooperation clause of
the policy, the insurance company must demonstrate actual prejudice; and (3)
prejudice is not a necessary consideration in determining the enforceability of
other insurance policy provisions.
[22] Here, we are faced with the insured’s failure to provide the insurance company
with a required pre-loss notice of a broken sprinkler system. Garvin argues that
we should apply the post-loss actual prejudice requirements as outlined in
Miller. Insurers, however, argue that this situation is distinguishable from the
post-loss situations discussed in Miller. Insurers contend that this is not a
forfeiture situation where coverage attached and then was lost through a
technical failure of some kind; rather, here, Garvin never had coverage for the
fire because the PSE’s conditions were not met.
[23] Insurers contend that “Indiana courts have a long, consistent history of
enforcing unambiguous exclusions as they are written, without considering
prejudice.” Appellees’ Br. p. 37. We agree. Our Supreme Court has held:
“Insurance companies are free to limit their liability in a manner not
inconsistent with public policy as reflected by case or statutory law. If a plainly
expressed exception, exclusion or limitation in an insurance policy is not
contrary to public policy, it is entitled to construction and enforcement as
Court of Appeals of Indiana Opinion 25A-PL-2272 July 15, 2026 Page 14 of 24
expressed.” Allstate Ins. Co. v. Boles, 481 N.E.2d 1096, 1098 (Ind. 1985) (internal
citation omitted).
[24] Our Supreme Court applied such an exclusion in Huff v. Travelers Indemnity Co.,
363 N.E.2d 985 (Ind. 1977). There, a “provision of the policy excluded
freezing losses occurring while the home was vacant, unless the insured
exercised due diligence in maintaining heat in the building or unless the water
systems were drained.” Huff, 363 N.E.2d at 993. The Court held:
Conditions requiring that certain precautions be taken against
loss are valid and must be complied with in order for the insured
to recover under the policy, unless the provision has been
waived. The term due diligence implies that the insured must
exercise whatever precautions are reasonably necessary to protect
against the risk. Whether the precautions taken by Huff
constituted due diligence is a factual question left to the fact
finder unless no reasonable man could differ as to the result.
Clearly reasonable minds could differ as to whether Huff had
exercised due diligence with respect to maintaining heat in the
building.
Id. at 994 (internal citation omitted). The Court, thus, enforced a pre-loss
exclusion without requiring the insurance company to demonstrate prejudice.
[25] Our Courts have routinely applied the plain language of such limitations in
insurance policies without consideration of prejudice. See, e.g., Mid-Am. Fire &
Cas. Co. v. Shoney’s, Inc., 843 N.E.2d 548, 552 (Ind. Ct. App. 2006) (enforcing a
business pursuit exclusion as written), trans. denied; Williams v. Safe Auto Ins. Co.,
980 N.E.2d 326, 330 (Ind. Ct. App. 2012) (enforcing an exclusion for
unlicensed drivers); Sheehan Const. Co. v. Cont'l Cas. Co., 935 N.E.2d 160, 171
Court of Appeals of Indiana Opinion 25A-PL-2272 July 15, 2026 Page 15 of 24
(Ind. 2010) (discussing an exclusion in a construction insurance policy), opinion
adhered to as modified on reh’g, 938 N.E.2d 685 (Ind. 2010); Holiday Hosp.
Franchising, 983 N.E.2d at 576 (enforcing an exclusion for acts of molestation or
abuse of a person in the hotel’s care); Boles, 481 N.E.2d at 1098 (answering a
certified question and holding that an exclusion “against coverage for injuries
sustained by persons related to the insured by blood, marriage, or adoption,
residing in his household” was “clear and unambiguous” and did not
“contravene public policy”); Hartford Live Stock Ins. Co. v. Everett, 169 N.E. 473
(Ind. App. 1930) (directing a verdict for the insurance company where the
insurance policy for a racehorse provided that the insurance company would
not be liable for the death of the animal if it was subject to an operation of any
kind without the written consent of the insurance company, and the racehorse
died after a procedure on its leg).
[26] Applying the clear language of the policy in a pre-loss case without requiring
the insurance company to demonstrate prejudice is also supported by federal
court decisions applying Indiana law. Frankenmuth Mutual Insurance Co. v. Fun
F/X II, Inc., 601 F. Supp. 3d 330 (N.D. Ind. 2022) (“Frankenmuth I”), and
Frankenmuth Mutual Insurance Co. v. Fun F/X II Inc., 61 F.4th 514 (7th Cir. 2023)
(“Frankenmuth II”), interpreted Indiana law and found for the insurance
company in similar circumstances. In Frankenmuth II, 61 F.4th 514, an
insurance policy exclusion required the insured to notify the insurance
company of a suspension or impairment in the building’s automatic sprinkler
system. It was undisputed that, after the insured learned that the sprinkler
system lacked water supply, the insured failed to notify the insurance
Court of Appeals of Indiana Opinion 25A-PL-2272 July 15, 2026 Page 16 of 24
company. 7 The building was later damaged in a fire, and the insurance
company denied the insured’s claim. The Seventh Circuit found that the
language of the exclusion was unambiguous and that the exclusion barred
coverage for the damages. The Seventh Circuit did not require the insurance
company to show prejudice.
[27] Given these decisions, we conclude that when considering these types of preloss conditions in an insurance policy: (1) we must apply the clear and
unambiguous language of the PSE provision; and (2) prejudice is not a
consideration in the analysis. We conclude that the prejudice analysis applied
in Miller is not applicable here. Accordingly, the trial court properly denied
Garvin’s motion for partial summary judgment on this issue.
II. The trial court properly granted Insurers’ cross-motion for
judgment on the pleadings.
A. Standard of Review
[28] Given our determination that Insurers are not required to demonstrate
prejudice, we must now determine whether the trial court properly granted
Insurers’ cross-motion for judgment on the pleadings. Indiana Trial Rule 12(C)
provides: “After the pleadings are closed but within such time as not to delay
the trial, any party may move for judgment on the pleadings.” “A motion for
7
In the lower court opinion, the District Court noted that the business owner’s conduct deprived the
insurance company of its contractual right to its detriment. The insurance company “could have
implemented emergency measures to verify water supply restoration, increased premiums, cancelled the
policy, or at least not renewed the policy . . . .” Frankenmuth I, 601 F. Supp. 3d at 343.
Court of Appeals of Indiana Opinion 25A-PL-2272 July 15, 2026 Page 17 of 24
judgment on the pleadings under Trial Rule 12(C) tests the sufficiency of a
claim or defense presented in the pleadings and should be granted ‘only where it
is clear from the face of the complaint that under no circumstances could relief
be granted.’” KS&E Sports v. Runnels, 72 N.E.3d 892, 898 (Ind. 2017) (quoting
Veolia Water Indianapolis, LLC v. Nat’l Trust Ins. Co., 3 N.E.3d 1, 5 (Ind. 2014)).
We “base our ruling solely on the pleadings,” and “we accept as true the
material facts alleged in the complaint.” Id.
[29] A trial court should grant a motion for judgment on the pleadings “only when it
is clear from the face of the pleadings that the plaintiff cannot in any way
succeed under the operative facts and allegations made therein.” Bayer Corp. v.
Leach, 147 N.E.3d 313, 315 (Ind. 2020). “[W]hen a pleaded claim provides no
circumstances in which relief can be granted, there is no need to put either the
parties or the court through costly and time-consuming litigation.” Id. We
review a Trial Rule 12(C) ruling “de novo.” KS&E Sports, 72 N.E.3d at 898.
B. Garvin violated the clear and unambiguous requirements of the
PSE.
[30] The PSE at issue here provided that, “[a]s a condition of this insurance,”
Garvin was required to maintain an automatic sprinkler system. Appellants’
App. Vol. III p. 45. The PSE further provided:
B. [ ] We will not pay for loss or damage caused by or resulting
from fire if, prior to the fire, you:
Court of Appeals of Indiana Opinion 25A-PL-2272 July 15, 2026 Page 18 of 24
1. Knew of any suspension or impairment in any
protective safeguard listed in the Schedule above and failed
to notify us of that fact; or
2. Failed to maintain any protective safeguard listed in the
Schedule above, and over which you had control, in
complete working order.
If part of an Automatic Sprinkler System or Automatic
Commercial Cooking Exhaust And Extinguishing System is shut
off due to breakage, leakage, freezing conditions or opening of
sprinkler heads, notification to us will not be necessary if you can
restore full protection within 48 hours.
Id. at 46 (emphasis added).
[31] Garvin argues that the phrase “maintain . . . in complete working order” as
found in Section (B)(2) is ambiguous. Id. We need not, however, reach that
issue because Section (B) is written in the disjunctive, and Section (B)(1) is clear
and unambiguous. Moreover, the relevant facts as alleged in the amended
complaint are undisputed. Garvin knew of the suspension or impairment of the
automatic sprinkler system. Under the PSE, notification to Insurers was
unnecessary if Garvin restored full protection within forty-eight hours, but
Garvin was unable to restore the system within forty-eight hours. Accordingly,
Garvin was required to notify Insurers of the issues with the sprinkler system,
but Garvin did not provide that notice. The PSE provision clearly provided
that Insurers would “not pay for loss or damage caused by or resulting from fire
if” Garvin failed to comply with the provisions of Section (B). Id.
Court of Appeals of Indiana Opinion 25A-PL-2272 July 15, 2026 Page 19 of 24 [32] Under these circumstances, it is clear from the face of the pleadings that, under
no circumstances, could relief be granted to Garvin. Accordingly, Insurers
were entitled to judgment on the pleadings.
Conclusion
[33] We conclude that the trial court properly denied Garvin’s motion for partial
summary judgment and properly granted Insurers’ cross-motion for judgment
on the pleadings. Accordingly, we affirm.
[34] Affirmed.
Foley, J., concurs.
Weissmann, J., concurs in result with separate opinion.
ATTORNEYS FOR APPELLANTS
Gregory M. Gotwald
Mary Claire Tuohy
Plews Shadley Racher & Braun LLP
Indianapolis, Indiana
ATTORNEYS FOR APPELLEES
Kyle A. Lansberry
Lewis Wagner & Trimble
Indianapolis, Indiana
Henry M. Mascia
Rivkin Radler LLP
New York, New York
Michael A. Troisi
Michael P. Welch
Evan H. Krinick
Cheryl F. Korman
Rivkin Radler LLP
Court of Appeals of Indiana Opinion 25A-PL-2272 July 15, 2026 Page 20 of 24
Uniondale, New York
David E. Walker
Danielle M. Towe
Walker Wilcox Matousek LLP
Chicago, Illinois
Weissmann, Judge, concurring in result.
[35] I agree that, to enforce the PSE exclusion, Insurers were not required to show
prejudice from Garvin’s failure to timely notify them of the impairment to his
warehouse’s sprinkler system. I write separately, however, because I do not
reach that conclusion by distinguishing between pre-loss and post-loss policy
breaches. Rather, I find the operative distinction to be between covenants and
conditions precedent, as those terms are traditionally understood in contract
law.
[36] Covenants are contractual promises to act or refrain from acting in specified
ways. Covenant, Black’s Law Dictionary (12th ed. 2024). They impose legal duties
on the promising party to perform accordingly, id., and they grant their
beneficiaries the right to pursue remedies if those duties are breached. Duty,
Black’s Law Dictionary (12th ed. 2024). Conditions precedent work differently.
They specify events that must occur before a promise becomes a covenant.
Condition, Black's Law Dictionary (12th ed. 2024). And until those events occur,
the promise does not impose on the promising party a duty to perform. Id.
Conditions precedent cannot be “breached” in the ordinary sense; they can only
go unfulfilled. See Town of Plainfield v. Paden Eng’g Co., 943 N.E.2d 904, 909
Court of Appeals of Indiana Opinion 25A-PL-2272 July 15, 2026 Page 21 of 24
(Ind. Ct. App. 2011) (“A condition precedent is . . . a condition that must be
fulfilled before the duty to perform a specific obligation arises.”).
[37] This case involves a condition precedent. Under the policy, Insurers generally
promised to pay Garvin for any fire loss, including a loss that occurred while
Garvin knew his warehouse’s sprinkler system was impaired. But the PSE
exclusion unambiguously conditioned the Insurers’ would-be duty to perform
on that promise on Garvin notifying Insurers that such an impairment existed.
Because Garvin did not fulfill that condition precedent, the promise never
became a covenant, and the policy never imposed on Insurers a legal duty to
pay for the fire loss.
[38] Miller v. Dilts, 463 N.E.2d 257 (Ind.1984), does not change this calculus because
the prejudice considerations discussed in that case arose in the context of
covenants. 8 The insurer in Miller sought to avoid an existing duty to defend its
insured against a third-party liability claim based on the insured’s prior breach
of their duty to notify the insurer of such a claim. Though not set forth in the
Court’s opinion, “[it] is well established that, when one party to a contract
commits the first material 9 breach of that contract, it cannot seek to enforce the
8
Although our Supreme Court characterized “the duties to notify and to cooperate” at issue in Miller as
“conditions precedent to [the] insurance company’s liability to its insured,” the facts of the case and the
Court’s refence to the insurer’s “liability,” rather than “duty,” suggest that the provisions giving rise to those
“duties” were covenants. 463 N.E.2d at 260-61 (emphasis added). But see Morris v. Econ. Fire & Cas. Co., 848
N.E.2d 663, 666 (Ind. 2006) (finding prejudice irrelevant where insureds “breached” policy “condition” that
“explicitly require[d] policyholder to perform specific duties”).
9
As Garvin correctly observes, the prejudice considerations discussed in Miller are “essentially the
implementation of the materiality doctrine.” Appellants’ Br., p. 21; see also Motorists Mut. Ins. Co. v. Johnson,
218 N.E.2d 712, 715 (Ind. Ct. App. 1966) (“A technical or inconsequential lack of cooperation has often
Court of Appeals of Indiana Opinion 25A-PL-2272 July 15, 2026 Page 22 of 24
provisions of the contract against the other party if that other party breaches the
contract at a later date.” TKG Assocs., LLC v. MBG Monmouth, LLC, 259 N.E.3d
306, 316 (Ind. Ct. App. 2025) (cleaned up; emphasis added). The Court
therefore deemed prejudice applicable but found it could be presumed.
[39] Unlike the insurer in Miller, the Insurers here do not seek to avoid liability for
the subject fire loss by claiming Garvin was the first to materially breach their
respective duties under the policy. Insurers claim to have no liability because
they never owed Garvin the duty he alleges they breached. The prejudice
considerations discussed in Miller therefore do not apply.
[40] This case is more akin to Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d
1267 (Ind. 2009). There, an insurer promised to defend its insured against thirdparty liability claims, and the insured promised to notify the insurer if any
accident occurred that could give rise to such a claim. When the insured
notified the insurer of a third-party liability claim three years after the accident,
the insurer agreed to defend the insured moving forward but declined to
indemnify the insured for its pre-notice defense costs. The insured then sued the
insurer for breach of contract, arguing that the insurer was required to prove
actual prejudice from the delayed notice to avoid its pre-notice duties.
[41] Emphasizing that the insurer was not seeking to avoid its post-notice duty to
defend, the Dreaded Court ruled that the policy’s notice provision “function[ed]
been held insufficient to void the policy . . . . Non-cooperation must be material. Prejudice must be shown by
insurer.”).
Court of Appeals of Indiana Opinion 25A-PL-2272 July 15, 2026 Page 23 of 24
as a condition precedent” to the duty to defend, generally. Id. at 1271 n.1, 1272-73. The Court therefore found that the insurer’s duty to defend did not arise
until the insured notified the insurer of the claim. Id. The Court further
observed that “prejudice is irrelevant” to this inquiry and affirmed the entry of
summary judgment in favor of the insurer on the insured’s breach of contract
claim. Id.
[42] The same logic applies here: because Garvin never fulfilled the condition
precedent to Insurer’s promise to pay for a fire loss that occurred while Garvin
knew his warehouse’s sprinkler system was impaired, Insurers’ duty to pay for
the loss never arose. Prejudice is irrelevant to this inquiry.
[43] Though other doctrines may address inequities arising from conditions
precedent and policy exclusions, those questions are not before us. Garvin
raised only whether the prejudice considerations discussed in Miller apply to
this case, and given its facts, they do not. Because I reach that conclusion
without resort to the pre-loss/post-loss distinction the majority draws, I concur
in result. 10
10
I also note that the majority opinion seems to overstate our Supreme Court’s stance on the prejudice
issue. The majority accurately quotes Morris v. Econ. Fire & Cas. Co., 848 N.E.2d 663, 666 (2006), as
stating: “While disputes regarding alleged breaches of an insured’s duty under a separate ‘cooperation
clause’ may necessitate consideration of resulting prejudice to the insurance company, such prejudice is
not a necessary consideration in determining the enforceability of other insurance policy
provisions.” Supra ¶ 19 (emphasis in original). The majority then repeats the bolded language in a
summary of the Court’s holdings on the issue. Supra ¶ 21. But in Tri-Etch, Inc. v. Cincinnati Ins Co., 909
N.E.2d 997 (Ind. 2009), the Court explained that this language from Morris “applies to some, but not
necessarily all provisions in the policy ‘other’ than the duty to cooperate.” Id. at 1005. Thus, to the extent
the majority relies on the bolded language as a definitive, all-inclusive proposition of law, I disagree.
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