Brown County 4-H Club Association, Corp., Appellant-Plaintiff v. National Casualty Company and K&K Insurance Group, Inc., Appellees-Defendants (2026)

MEMORANDUM DECISION

Case Summary

[1] William Kelp sued Brown County 4-H Club Association, Corp. (Brown County 4-H) seeking damages for an injury he allegedly sustained while attending a Brown County 4-H Fair event.¹ Brown County 4-H then sued K&K Insurance Group, Inc. (K&K) and National Casualty Company (NCC) (collectively, Insurance Defendants) seeking a declaratory judgment that the Insurance Defendants are liable for Kelp's injuries and have a duty to defend Brown County 4-H in Kelp's lawsuit. The trial court later granted the Insurance Defendants’ motion for judgment on the pleadings, concluding that an exclusion in the insurance policy barred recovery, and ordered that the Insurance Defendants had no duty to defend or indemnify Brown County 4-H. Brown County 4-H appeals, alleging judgment on the pleadings denying coverage and excusing the duty to defend was erroneous. We reverse and remand.

Facts and Procedural History

[2] Brown County 4-H maintained a commercial general liability insurance policy under policy number KKO0000026982900. App. Vol. II p. 137. Subject to enumerated exclusions, the policy provided coverage for bodily injury or property damage arising from an “occurrence” in a “coverage territory,” id. at 137, or at a covered “event” including the “2023 Fair.” Id. at 171.

[3] On April 30, 2024, Kelp brought a negligence action against Brown County 4-H (the Kelp Complaint), which is still pending.² Kelp alleged he was injured at the June 2023 Brown County 4-H Fair when a “mud bog vehicle[ ] threw a rock” that hit him in the eye while he was in the “Pits[.]” Id. at 3. Brown County 4-H did not admit the allegations.

[4] In the fall of 2024, Brown County 4-H brought a declaratory action against the Insurance Defendants. In its amended complaint, Brown County 4-H alleged, in relevant part:

6. Brown County 4-H has a valid policy of liability insurance issued by at least one of the Defendants.

7. The policy of liability insurance covers the Brown County 4-H Fair.

8. On June 17, 2023—i.e., during the 2023 Brown County 4-H Fair—William Kelp, a bystander, claims to have been injured by flying debris from the “mud bogging” event, which involves vehicles racing through mud.

9. Mr. Kelp made a claim to cover his alleged injuries.

10. Defendants denied that claim in coverage disclaimers dated February 26, 2024, and May 14, 2024.

11. Following the denial of his claim, Mr. Kelp sued Brown County 4-H in the Brown Circuit Court under Cause No. 07C01-2404-CT-000163, seeking compensation for his alleged damages.

12. Under the terms of the liability insurance policy Defendants are obligated to cover Mr. Kelp's claim.

Id. at 34. Brown County 4-H sought a judgment declaring that the Insurance Defendants were liable for Kelp's injuries up to the policy limit and that “they must honor all express and implied terms of the policy, including the duty to defend.” Id. at 35. In their joint amended answer, the Insurance Defendants attached the policy as an exhibit and admitted only that NCC issued an insurance policy to Brown County 4-H; they denied that K&K issued a policy.

[5] In March 2025, the Insurance Defendants filed a motion for judgment on the pleadings alleging: (1) K&K had no obligation to Brown County 4-H because it was merely a third-party claims administrator and did not issue a policy, and (2) NCC had no duty to defend or indemnify Brown County 4-H because recovery for Kelp's injuries was barred under the policy's “Recreational Vehicles Exclusion” (RV Exclusion) and “Sports or Athletic Activities Participants Exclusion” (Participants Exclusion). App. Vol. III p. 3. Brown County 4-H filed a response in opposition.

[6] The trial court granted the Insurance Defendants’ motion, without a hearing. The court found the RV Exclusion barred recovery, ordered that Insurance Defendants had no duty to defend, and declined to address Insurance Defendants’ other two arguments. The court denied Brown County 4-H's subsequent motion to correct error. This appeal ensued. Additional facts are provided as necessary.

Discussion and Decision

[7] Brown County 4-H challenges the trial court's judgment on the pleadings. Our review of a ruling on an Indiana Trial Rule 12(C) judgment on the pleadings is de novo. Celadon Trucking Servs., Inc. v. Wilmoth, 70 N.E.3d 833, 839-40 (Ind. Ct. App. 2017), trans. denied.

A ruling on a Rule 12(C) motion must be based solely on the pleadings, as well as any facts of which judicial notice may be taken, and courts must accept the properly-pleaded material facts alleged in the complaint as true. A motion for judgment on the pleadings may be granted only if it is clear from the face of the complaint that relief could not be granted to the plaintiff under any circumstances.

For purposes of a Rule 12(C) motion, the pleadings consist of the complaint and answer, as well as any reply to a counterclaim, answer to a cross-claim, third-party complaint, and answer to a third-party complaint. Pleadings also consist of any written instrument attached to a pleading, pursuant to Ind. Trial Rule 9.2. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.

Id. at 840 (citations and quotations omitted). Here, the pleadings included Brown County 4-H's amended complaint, the Insurance Defendants’ amended answer, and Brown County 4-H's insurance policy, which the Insurance Defendants attached to their answer.³

[8] For purposes of a motion for judgment on the pleadings, the Insurance Defendants could only have been entitled to such a judgment if the contract at issue is deemed unambiguous and its terms support their position. “The provisions of an insurance contract are subject to the same rules of construction as are other contracts.” Consolidated Ins. Co. v. Nat'l. Water Servs., LLC, 994 N.E.2d 1192, 1196 (Ind. Ct. App. 2013), trans. denied. Thus, the interpretation of Brown County 4-H's policy presents a pure question of law that we also review de novo. Id.

If a contract's terms are clear and unambiguous, courts must give those terms their clear and ordinary meaning. Courts should interpret a contract so as to harmonize its provisions, rather than place them in conflict. We will make all attempts to construe the language of a contract so as not to render any words, phrases, or terms ineffective or meaningless. A contract will be found to be ambiguous only if reasonable persons would differ as to the meaning of its terms. When a contract's terms are ambiguous or uncertain and its interpretation requires extrinsic evidence, its construction is a matter for the fact-finder.

Id. at 1196-97 (citations and quotations omitted).

I. Waiver

[9] Initially, the Insurance Defendants argue Brown County 4-H waived all issues on appeal for various reasons, including that some issues were not re-raised on appeal and some were raised for the first time in Brown County 4-H's motion to correct error. Although a party generally waives review of an issue not presented to the trial court, the waiver rule “does not preclude a party from expanding upon arguments made to the trial court and presenting additional authorities to the appellate court․” Celadon Trucking Servs., 70 N.E.3d at 841. “The waiver rule does not mean that parties may not take any new position or that no new arguments may be adduced; it only means that independent substantive questions not within the issues or not presented to the trial court cannot be made for the first time on appeal.” Id.

[10] On appeal, we are asked to review the trial court's entry of judgment on the pleadings based on interpretation of an insurance policy. To effectuate our review, we stand in the shoes of the trial court and examine the pleadings, including the written instrument affixed to the pleadings, and the Insurance Defendants’ motion requesting said judgment. To the extent that Brown County 4-H may have referenced different policy provisions below versus on appeal, we view such arguments as within the scope of the contract and as mere expansions upon its earlier arguments. See, e.g., id. (“[T]he parties’ ‘new’ arguments on appeal invoking different contractual provisions than they did before the trial court are merely expansions upon their earlier arguments.”). Additionally, when reviewing the interpretation of a contract we consider the contract as a whole and apply a de novo review. Id. “We are not limited in that interpretation to the precise arguments made by the parties before the trial court and need not turn a blind eye to contractual provisions that may be relevant to our analysis.” Id. Brown County 4-H has not waived review of the court's Rule 12(C) judgment in favor of the Insurance Defendants.⁴

II. RV Exclusion

[11] The Insurance Defendants argue that the RV Exclusion negates their duty to defend or indemnify Brown County 4-H. The RV Exclusion provides that coverage does not apply to

“bodily injury,” ․ [a]rising out of the ownership, maintenance, use, entrustment to others, loading or unloading in practicing for, qualifying for or testing for any racing, speed, demolition or stunting activity which involves any motorized vehicle, including, but not limited to, any “auto,” “mobile equipment,” motorcycle, snowmobile, watercraft or powerboat.

App. Vol. II p. 160.

[12] Indiana appellate courts have long interpreted the phrase “arising out of” as unambiguous. In 1973, our Supreme Court held that for an injury to “arise out of” the use of a vehicle, such use must be the “efficient and predominating cause” of the injury. Ind. Lumbermens Mut. Ins. Co. v. Statesman Ins. Co., 291 N.E.2d 897, 898, 899 (Ind. 1973). In other words, “arising out of the ownership, maintenance or use” of a vehicle “is synonymous to being caused by use of” the vehicle. Id. at 899. Post-Lumbermens courts have continued to interpret “arising out of” as unambiguous in negligence liability claims, including when used in commercial general liability versus automobile liability policies.⁵ From there, our courts engage in a fact-sensitive inquiry to determine whether a particular vehicle was in use and was the cause of an injury.

[13] For example, in Meridian Mut. Ins. Co. v. Purkey, Purkey's Heating & Cooling was insured by Meridian under a general liability policy. 769 N.E.2d 1179 (Ind. Ct. App. 2002). The policy excluded coverage for property damage arising out of ownership, maintenance, use or entrustment to others of an automobile. Intending to repair a gas leak, Purkey was siphoning gasoline out of a personal and business-use vehicle when the vehicle caught fire, injuring him and damaging several apartment buildings. The Purkey court found the damage arose out of Purkey's maintenance of the vehicle and was thus excluded from coverage. Id. at 1188.

[14] In Franz v. State Farm Fire and Cas. Co., a church was insured by State Farm under a comprehensive liability policy. 754 N.E.2d 978 (Ind. Ct. App. 2001), trans. denied. As above, the policy excluded coverage for bodily injury arising out of use of any auto operated by the insured. The church hosted a “bus pull” contest, wherein a rope was tied to the front of the bus, and a team of people pulled the rope to move the bus. During the contest, the bus was geared in neutral, and a person was in the driver's seat with the intent of being able to apply the brakes if needed. A boy was injured when he fell and the bus ran over him before the brakes were applied. Our court found that the negligent operation of the vehicle, i.e. the failure to brake in time, caused the injury; thus, the exclusion applied. Id. at 981.

[15] Here, the RV Exclusion is similarly unambiguous, excluding injuries arising out of the use of an included vehicle. Turning to the allegations in the pleadings, the pivotal fact we take as true is that “during the 2023 Brown County 4-H Fair—William Kelp, a bystander, claims to have been injured by flying debris from the ‘mud bogging’ event, which involves vehicles racing through mud.” App. Vol. II p. 34. It is possible that a trial court could interpret this injury as arising directly from the use of a vehicle, i.e. that a vehicle driving through the mud was the efficient and predominating cause of debris flying up and injuring Kelp, if such facts were proven. As such, it is possible that coverage is barred under the RV Exclusion.

[16] But, to prevail on a Trial Rule 12(C) motion, it must be clear from the face of the complaint that relief could not be granted to the plaintiff under any circumstances. Celadon, 70 N.E.3d at 840. Brown County 4-H's complaint alleges that Kelp was injured by flying debris during a mud bogging event. That such debris was set in motion by use or operation of a vehicle during the event is not pled here. Instead, the fact that a vehicle threw the debris entered this action only through the Insurance Defendants’ 12(C) motion and reference to the Kelp Complaint. See App. Vol. III p. 3. In Purkey and Franz, the vehicle's use was clear from the facts and a causal link between the vehicle use and an injury could be established. Here, based on the facts pled by Brown County 4-H, we cannot conclude that the use of a vehicle was the efficient and predominating cause of the flying debris. Thus, the RV Exclusion's factual predicate is not established on the pleadings alone. Because there remains some circumstance under which Brown County 4-H could be granted relief, judgment on the pleadings in favor of the Insurance Defendants based on the RV Exclusion is not appropriate.

III. Participants Exclusion

[17] Although the trial court did not address the Insurance Defendants’ additional 12(C) arguments, our de novo review of such motions requires us to do so. In their motion and on appeal, the Insurance Defendants argue the Participants Exclusion also bars recovery. That exclusion provides that coverage does not apply to bodily injury to a participant of a motorsport. Id. at 157. A participant is defined as “any person who is instructing, supervising, training or practicing for, participating in or otherwise involved in any athletic activity, physical exercise, or games, sports, athletic contests, contest or exhibition that [Brown County 4-H] operate[s] or sponsor[s].” Id. In addition, a motorsports participant includes “related drivers, mechanics, pitpersons, actual officials of the race/event, announcers, ambulance crews, tow truck or push car crews, newspersons, photographers, pitgate workers, all other persons allowed access to the ‘restricted area’ prior to, during or after the staging of the ‘covered program’.” Id. (capitalization omitted).

[18] As above, our review of a Rule 12(C) motion is limited to pleadings and the properly pled material facts alleged in the complaint, which we accept as true. Here, Brown County 4-H alleged in its complaint that “Kelp, a bystander,” claimed to have been injured during a mud bogging event. Id. at 34. Because the Participants Exclusion does not facially bar coverage for injuries to bystanders, we cannot conclude that Brown County 4-H's claim would fail on the facts alleged in its complaint.

[19] Still, the Insurance Defendants assert that Kelp was a person who was permitted access to the pits, thus barring coverage for his injuries under the Participants Exclusion. But the alleged fact that Kelp was in the pits when his injury occurred is contained in the Kelp Complaint, which, again, is not before us in our review. Thus, a Rule 12(C) judgment is not appropriate based on the Participants Exclusion.

IV. K&K Dismissal

[20] In its amended complaint, Brown County 4-H alleged that it has “a valid policy of liability insurance issued by at least one of the Defendants” and that “[u]nder the terms of the liability insurance policy Defendants are obligated to cover Mr. Kelp's claim.” Id. The Insurance Defendants sought a judgment under Rule 12(C) that K&K had no duty to defend or indemnify Brown County 4-H because it is merely a “third-party claims administrator” and “did not issue any policy of insurance or provide coverage to Brown County 4-H.” App. Vol. III p. 8. Again, we are confined to the pleadings. Taking Brown County 4-H's allegations as true, the pleadings do not conclusively resolve K&K's role or negate its involvement as a matter of law. As such, judgment on the pleadings as to K&K is premature.

Conclusion

[21] On these pleadings, we cannot say the Insurance Defendants have no duty to defend or indemnify.⁶ We thus reverse the trial court's entry of judgment on the pleadings and remand for further proceedings.

[22] Reversed and remanded for further proceedings.

FOOTNOTES

1.   Kelp also named Brown County 4-H Council Incorporated and John Doe as defendants; no other defendants participated in the declaratory judgment action which is the subject of this appeal.

2.   See Cause No. 07C01-2404-CT-163.

3.   Relying on Ind. Farmers Mut. Ins. Co. v. N. Vernon Drop Forge, Inc., 917 N.E.2d 1258 (Ind. Ct. App. 2009), trans. denied, the Insurance Defendants assert that we should also consider the Kelp Complaint because the “allegations of the underlying personal injury complaint—and not the insured's declaratory judgment action—determine coverage.” Appellees’ Br. p. 25. In N. Vernon Drop Forge, Inc. (NVDF), we determined that courts were permitted to look outside of the corners of an insurance policy and underlying complaint when assessing an insurer's duty to defend in a summary judgment proceeding. Specifically, the NVDF court concluded that courts could review designated Trial Rule 56 materials, including a sworn, self-serving affidavit, in addition to the insurance policy and the allegations contained in the underlying complaint. See N. Vernon Drop Forge, Inc., 917 N.E.2d at 1269 (observing that our Supreme Court permitted courts to consider evidence extrinsic to the underlying complaint and policy in its decision in Auto-Owners Ins. Co. v. Harvey, 842 N.E.2d 1279 (Ind. 2006)).The Insurance Defendants’ reliance on NVDF is misplaced. It is well-settled that the reviewable materials for purposes of a Rule 12(C) motion are the pleadings in the instant case, written instruments affixed thereto, and any fact of which a court may take judicial notice. The Kelp Complaint is not among these materials, and we decline the Insurance Defendants’ invitation to expand the NVDF holding regarding reviewable materials for summary judgment to materials reviewable for judgments on the pleadings. Further, whether the allegations in the Kelp Complaint may be considered should this case proceed to summary judgment is not before us today. And we will only treat a motion for judgment on the pleadings as a motion for summary judgment if the trial court did not exclude matters outside the pleadings from its review. Holmes v. Celadon Trucking Servs. of Ind., Inc., 936 N.E.2d 1254, 1256-57 (Ind. Ct. App. 2010). But, here, the trial court explicitly excluded the Kelp Complaint from its consideration, noting in its “Order Granting Motion for Judgment on the Pleadings” that the pleadings consisted only of Brown County 4-H's amended complaint, the Insurance Defendants’ amended answer, and the attached insurance policy. App. Vol. II p. 190 (capitalization omitted).In a final attempt to bring the allegations in the Kelp Complaint before us in our review, the Insurance Defendants assert we may take judicial notice of the complaint under Indiana Evidence Rule 201(a)(1)(B) or (a)(2)(C). Rule 201(a)(1)(B) permits judicial notice of a fact that “can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.” And Rule 201(a)(2)(C) permits judicial notice of “the existence of ․ records of a court of this state.” Although we could take judicial notice of the existence of the Kelp Complaint, we may not take judicial notice of the unverified allegations therein. Such allegations are not facts that can be accurately determined from reasonably unquestionable sources and are not appropriate for us to judicially notice. We thus do not consider the facts contained within the Kelp Complaint in our review of the Insurance Defendants’ 12(C) motion.

4.   The Insurance Defendants also note that Brown County 4-H relied upon the Indiana Trial Rule 12(B)(6) standard of review in response to the Insurance Defendants’ Trial Rule 12(C) motion for judgment on the pleadings below. The Insurance Defendants assert that Brown County 4-H thus waived its substantive argument against their Rule 12(C) motion, and further waived review via its motion to correct error and appeal. We are unpersuaded that Brown County 4-H's citations to Rule 12(B)(6) authority below waive our review of the court's ruling now. Brown County 4-H's arguments challenging the court's judgment on the pleadings are sufficiently preserved for our review.

5.   See Starr Indemnity & Liability Ins. Co. v. American Commercial Barge Line, LLC, -- N.E.3d --, 2026 WL 1141405, *6 n.4 (Ind. Ct. App. 2026), reh'g denied, noting the breadth of Lumbermens’ progeny, which consistently interprets the phrase “arising out of” as unambiguous.

6.   Because we cannot conclude as much based on the arguments raised in the Insurance Defendants’ Rule 12(C) motion, we do not reach the merits of Brown County 4-H's argument that the “Hired Auto and Nonowned Auto Liability” coverage creates an ambiguity in the policy. Appellant's Br. p. 21.

Scheele, Judge.

Bailey, J., and Vaidik, J., concur.