Opinion
C.A. No.: 99C-01-299-FSS.
Submitted: July 10, 2000.
Decided: October 31, 2000.
Upon Defendant's Motion To Dismiss and Third Party Defendant's Motion For Summary Judgment and Cross Motion for Summary Judgment — DENIED
Frederick W. Iobst, Esquire, Young Conaway Stargatt Taylor, Rodney Square North, 11th Floor, P.O. Box 391, Wilmington, Delaware, 19899-0391. Attorney for Plaintiff.
David L. Baumberger, Esquire, Chrissinger Baumberger, Three Mill Road, Suite 301, Wilmington, Delaware, 19806. Attorney for Defendant.
Steven P. Mones, Esquire, McCullough McKenty Kafader, P.A., 824 Market Street, Fourth Floor, P.O. Box 397, Wilmington, Delaware, 19899-0397. Attorney for Third Party Defendant.
ORDER
This decision concerns indemnification and "hold harmless" clauses. Plaintiff is an injured worker. When he was hurt, he was working for an electrical subcontractor. Although the workers' compensation law bars a tort claim by Plaintiff against his employer, Casey Electric, Plaintiff has sued the general contractor, Whiting-Turner, for negligence. Whiting-Turner and Casey Electric each claim that the other is liable, directly or indirectly, under the terms of the contract between Whiting-Turner and Casey Electric. The parties have filed cross motions for summary judgment.
I.
As mentioned, Plaintiff was employed by Casey Electric, a sub-contractor for Whiting-Turner. They were renovating a building at the University of Delaware in Newark. It is agreed that Plaintiff was injured when he slipped in mud outside the building in which he was working. Apparently, the mud was obvious. The subcontractor had placed cardboard or plywood on the ground in the general area. It also is agreed that Whiting-Turner and Casey Electric both maintained trailers at the job site as mobile offices or tool sheds. Regardless of their legal responsibilities to each other, which will be addressed below, in reality Whiting-Turner and all of its many subcontractors, including Casey Electric, owed their workers, including Plaintiff, a safe workplace. Whiting-Turner and Casey Electric had foremen at the site on a daily basis and they had safety meetings biweekly. Partly for that reason, the Court cannot conclude that Whiting-Turner or Casey Electric was responsible to the exclusion of the other for the safety of the area where Plaintiff fell. There are facts from which a jury could conclude both Whiting-Turner and Casey Electric considered themselves responsible for Plaintiffs safety. And the Court will not find as a matter of law that either Whiting-Turner or Casey Electric did not owe a duty of care to Plaintiff. In other words, both Whiting-Turning and Casey Electric had a duty of care and there is evidence from which a jury could find either Whiting-Turner or Casey Electric, or both of them, were negligent and that their negligence proximately caused Plaintiffs injury.
See Emory, Hill, McConnell Assocs., Inc. v. Snyder, Del. Supr., No. 63, 1992, Walsh, J. (July 14, 1992) (Order at 2) (General contractor owed "duty to subcontractors and their employees to maintain the premises in safe condition and warn of dangers it knew or had reason to know.").
II.
The Court's working assumptions about Defendant's potential negligence and proximate cause do not resolve the issue as to each Defendant's financial participation in any judgment that Plaintiff receives. Casey Electric was Plaintiffs employer and as mentioned above, it cannot be held directly liable to Plaintiff Nor can Casey Electric be forced to make contribution to Whiting-Turner. Plaintiff, however, potentially has a direct cause of action against Whiting-Turner. And Casey Electric has a limited contractual obligation to indemnify Whiting-Turner.
Precision Air, Inc. v. Standard Chlorine of Delaware, Inc., Del. Supr., 654 A.2d 403, 406-407 (1995) (On interlocutory appeal, held that owner could "not maintain a contribution action against [appellant contractor]" because "employer cannot be held liable as a joint tortfeasor, it is not obligated to provide contribution to . . . third party." Under case's particular facts owner could seek indemnification by contractor.).
For the moment, this case turns on the December 3, 1997 subcontract for electrical work between Whiting-Turner and Casey Electric. Under the subcontract's Article 9(e):
The Subcontractor agrees to indemnify and hold harmless the Contractor . . . from and against any and all claims . . . arising. in any manner from the acts and omissions of the Subcontractor. . . . The Subcontractor shall defend and bear all costs of defending any actions or proceedings brought against the Contractor . . . arising in whole or in part out of such acts or omissions. . . .
Under Article 9(p):
Subcontractor shall comply with all applicable . . . laws . . . and to the extent permitted by law, indemnify and hold Contractor . . . harmless from any and all liability . . . resulting from a claim filed by anyone in connection with the aforementioned acts . . . arising out of this Agreement or any subcontract hereunder.
The subcontractor agrees to:
. . . (6) immediately evade all hazards within its control regardless of whether it created such hazards and (7) where the Subcontractors were aware of the existence of a hazard not within its control notify the Contractor of the hazard as well as warn exposed persons to avoid the hazard.
Article 9, in its entirety, is attached to this Order.
As a matter of law, Article 9 does not protect either Whiting-Turner or Casey Electric from its own negligence. The Court can enforce an agreement to hold a party to a contract harmless and require one party to indemnify the other party for its own negligence. But these clauses are so disfavored, the law requires them to be "crystal clear and unequivocal." In other words, Casey Electric's contractual promise does not require Casey Electric to indemnify Whiting-Turner for liability arising out of Whiting-Turner's negligence. On the other hand, to the extent that Whiting-Turner is held liable for Casey Electric's negligence, Casey Electric is bound contractually to indemnify Whiting-Turner.
Jordan v. State v. Interstate Amiesite Corp., Del. Supr., 297 A.2d 41, 44-45 (1972), ("[T]he general rule [is] that such a contract provision must be crystal clear and unequivocal in requiring the contractor to assume all liability for damage claims, whichever party may have been guilty of the negligence which actually caused the injury."); Hollingsworth v. Chrysler Corp., Del. Super., 208 A.2d 61, 63 (1965) ("It is clear . . . Delaware courts have looked with disfavor upon contracts to indemnify a person against his [or her] own negligence and that doubtful or ambiguous language is construed against such interpretation." Further, while the word "negligence" need not be expressly used, "the intention to immunize an indemnitee must be clear . . ."). See Laughlin v. Delmarva Power Light, Co., Del. Super., C.A. No. 89C-AU-213, Taylor, J. (Nov. 20, 1991) (Order at 1) ("[F]or a party to be insulated from consequences of its own negligence, the contract between the parties must be `crystal clear and unequivocal . . .'" (citing Interstate)); Jordan v. El. duPont Nemours Co., Del. Super., C. A., No. 84C-FE-108, Taylor, J. (Aug. 8, 1986) Order at 3-4 (Indemnification clause in contract between general and subcontractor did not require subcontractor to indemnify general contractor for general contractor's own negligence: "In order to make a subcontractor an indemnitor for his contractor's negligence, the indemnity language must be clear and unequivocal in requiring contractor to assume all liability claims, whichever party may have been guilty of the negligence which actually caused the injury." (citing Hollingsworth) . . . No Delaware case has allowed indemnification of a party for its own negligence without making specific reference to the negligence of the indemnified party.); Sweetman v. Strescon Industries, Inc., Del. Super., 389 A.2d 1319, 1321 (1978) (General contractor not entitled to indemnification for its own negligence by first subcontractor: "for a party to be entitled to indemnification for the results of its own negligence the contract language must be crystal clear or sufficiently unequivocal to show that the contracting party intended to indemnify the indemnitee for the indemnitee's own negligence."). See also Paoli v. Dave Hall, Inc., Del. Super., 462 A.2d 1094 (1983); J.A. Jones Construction Co. v. City of Dover, Del. Super., 372 A.2d 540 (1977).
The parties have briefed and argued the work site control doctrine. Because the Court concludes that the contract's indemnification clause does not indemnify Whiting-Turner for its own negligence, that doctrine is inapplicable. Emory holds that where "the dangerous condition which caused the injury was clearly not inherent in the electrical work being done . . .," the "active control" doctrine does not apply. As in Emory, this case involves a general contractor and an electrical subcontractor. Here too, subcontractor's employee's injury on the job site was caused by a dangerous condition not inherent in the electrical work being done.
See Rabar v. El. duPont Nemours Co., Inc., Del. Super., 415 A.2d 499, 504 (1980), rev'd on other grounds, Figgs v. Bellvue Holding Co., Del. Super., 652 A.2d 1084, 1089 (1994) (citing Gade v. National Solid Wastes Mgt. Assoc., 505 U.S. 88, 98, 112 S.Ct. 2374, 2383, 120 L.Ed.2d 73 (1992)).
See O'Connor v. Diamond Telephone Co., 503 A.2d 661, 663 (1985) (Delaware imposes no duty on landowners and general contractors to protect independent contractor's employee from work place hazards created by the contract work, premises' condition or manner of work performance, unless "owner or general contractor retains active control over the manner in which work is carried out and the methods used." See also Seeny v. Dover Country Club Apts., Inc., Del. Super., 318 A.2d 619, 621 (1974); Williams v. Cantera, Del. Super., 274 A.2d 698, 700 (1971). Active control is an "elastic" concept, but not ordinarily inferred from a general contractor's inspection right or exercise of superintendance to ensure contract complicity. Seeny, 318 A.2d 621 (citing Williams, 274 A.2d at 701).
Emory at 2.
III.
For the foregoing reasons, the parties' cross-motions for summary judgment are DENIED. When this case goes to trial, the Court expects to submit a special verdict form to the jury. The Court tentatively expects to ask the jury to consider Defendants' joint liability. Then the jury will consider Plaintiffs contributory negligence and finally, the jury will apportion liability, if any, between Whiting-Turner and Casey Electric. The Court will use the jury's apportionment to determine each Defendant's financial responsibility for any judgment obtained by Plaintiff. of course, the Court is interested in the parties' views on the Court's tentative approach.
IT IS SO ORDERED.
APPENDIX
ARTICLE 9. MISCELLANEOUS —(a) The Subcontractor shall nor sublet, assign or transfer this Contract or any part thereof, or the money due or to become due under it. without the written consent of Contractor; and any assignment or transfer without such consent shall be void.
(b) Subcontractor's bid or proposal was accepted, and this Subcontract was awarded, on the condition that this form of Subcontract would be executed, without change or alteration, by Subcontractor and on the condition that Subcontractor would commence performance of the work on the date established by Contractor. Commencement of performance of the work described herein shall constitute Subcontractor's agreement to each and every term hereof irrespective of whether this Subcontract is executed by Subcontractor.
(c) The Subcontractor shall not cause any unnecessary hindrance or delay to the Contractor or to other subcontractors on said Project and shall repair promptly and be responsible for all damage done to the work of the Contractor or other subcontractors by Subcontractor its agents. employees, subcontractors, or suppliers. Subcontractor shall be directly responsible to the Contractor or other subcontractors whose work is so damaged. The Contractor shall be responsible to the Subcontractor for physical damage to Subcontractor's work only if such damage is directly and proximately caused by the sole negligence of the Contractor.
(d) The Subcontractor also agrees to clean up daily and remove dirt, trash and debris which may result from its employees and the work done hereunder from the job sire, as directed by the Contractor. In the event the Subcontractor fails to clean up and remove such dirt, trash and debris, the Contractor may. at its discretion, arrange for the same at Subcontractor's expense.
(e) The Subcontractor agrees to indemnify and hold harmless the Contractor and/or Owner, their officers, directors, agents agents and employees, from and against any and all claims, suits, liens, judgments, damages, losses and expenses, including, but not limited to attorney's fees, arising in whole or in part and in any manner from the acts or omissions of the Subcontractor, its officers, directors agents, employees or subcontractors, in the performance of this Contract. The Subcontractor shall defend and bear all costs of defending any actions or proceedings brought against the Contractor and/or Owner, their officers. directors, agents and employees, arising in whole or in part out of any such acts or omissions, provided, however, that the Contractor and/or Owner shall have the right to approve counsel to conduct such defense.
(f) Subcontractor acknowledges that, before executing this Agreement. it has carefully examined this Agreement. The Contract Documents and the Project site, has made such investigation of the Work required to be done and the material required to be furnished and, based upon such examination and investigation. Subcontractor represents that it fully understands and can perform all requirements of the Contract Documents.
(g) With regard to the subject matter of this Subcontract: (1) Subcontractor shall have no greater or different rights and!o remedies against Contractor with respect to any matter (including, but not limited to. omissions, alterations. extra work and additional compensation, than Contractor has against Owner pursuant to the Contract Documents: (2) Subcontractor assumes all obligations, duties responsibilities by which Contractor is bound to Owner pursuant to the Contract Documents: 3) Subcontractor shall be bound Contractor to the same extent that Contractor is bound to Owner by all of the terms, provisions and conditions set forth in the Documents: and (4) Owner shall have all rights and remedies against Subcontractor that Owner has against Contractor pursuant Contract Documents.
(h) The Contractor shalt have the right at any time to cancel this Contract and require this Subcontractor to cease Work thereon in the event the General Contract is cancelled or terminated in accordancc with its terms or by reason of the default of the Owner. The Subcontractor, in such event, shall be entitled to further payment only as provided in Article 5. The Subcontractor agrees to be bound by any and all provisions in the General Contract respecting renegotiation as well as cancellation or termination.
(i) Subcontractor agrees to clearly note on each payment check to, and related invoice of, its subcontractors and material suppliers which exceed One Thousand Dollars ($1,000.00), as being for work or materials provided pursuant to this Agreement for this Project by name, all to be subject to Contractor's inspection upon request. Subcontractor also agrees to submit promptly to Contractor upon request, the name, address and telephone number of each subcontractor or supplier of any tier, to Subcontractor for labor, materials, or equipment used on this Project.
(j) The Subcontractor warrants its workmanship and materials furnished against any defects, faults or damages arising therefrom during the period of construction and for a period of one year from the date of final completion of the Project (or for such longer period of time as may be required herein or by the Contract Documents). The Subcontractor shall remedy such defective workmanship, material, or damages at the request of the Contractor, at times convenient to the Owner, and to the satisfaction of Owner, Architect and Contractor.
(k) It is further understood and agreed that all work performed under this Contract shall be in strict conformity with applicable laws, codes, ordinances, rules, regulations and requirements of Federal, State, County and Municipal authorities and of the National Board of Fire Underwriters and any local fire Underwriters and any local fire insurance exchange now or hereafter in effect. In the event of any discrepancy between the present requirements of such laws or authorities and the provisions of this Subcontract, the former shall govern, and the Subcontractor shall perform the work as required thereby at no extra cost. Should the Subcontractor incur additional costs because of any future change in such requirements, additional compensation therefor will be conditioned upon approval of the Architect and Owner. If the Subcontractor performs any work contrary to such laws, codes, ordinances, rules, regulations or requirements, it shall bear all costs arising or resulting therefrom.
(l) Subcontractor shall be represented on the job site during the course of its work by qualified, full-time supervisors acceptable to Contractor. Subcontractor shall enforce discipline and good order among its employees, suppliers, and subcontractors engaged in the work. Contractor may require Subcontractor to remove from the project any such employees, suppliers, or subcontractors or others employed on the work that Contractor may deem incompetent, improper, or a hindrance to progress of any work on the Project, whereupon any such employee, supplier, or subcontractor shall be so removed and shall not again be employed on any part of the work without written consent of the Contractor.
(m) The Contractor shall have the right to require at any or all progress meetings, whether called by the Owner, the Contractor, or others, the presence of a representative of the Subcontractor authorized to act in its behalf.
(n) The Subcontractor agrees that it will not engage in discriminatory employment practices in violation of any Federal, State, or local law including any order or regulation of any agency authorized to enforce any such law. To the extent applicable, the Subcontractor agrees to comply with Title VII of the Civil Rights Act of 1964, Executive Order 11246, and all additional orders, regulations, amendments, etc., pertaining thereto, including certification of nonsegregated facilities. The Subcontractor agrees to furnish such additional information, certifications, and policies as may be required by the Contract Documents.
(o) The Subcontractor agrees to comply with all applicable rules, regulations and relevant orders of the Secretary of Labor issued pursuant to the Rehabilitation Act of 1973, the Vietnam Era Veterans Readjustment Assistance Act of 1974, and the Americans With disabilities Act of 1990.
(p) Subcontractor shall comply with all applicable federal, state and local laws, regulations and orders relating to occupational safety and health, and related procedures established by Contractor and shall, to the extent permitted by law, indemnify and bold Conractor and Owner, their directors, officers, agents and employees, harmless from any and an liability, public or private, penalties, contractual or otherwise, losses, damages, costs. attorney's fees, expenses, causes of action, claims or judgments resulting from a claim filed by anyone in connection with the aforementioned acts, or any rule, regulation or order promulgated thereunder, arising out of this Agreement or any subcontract hereunder. Subcontractor further agrees in the event of a claim of violation of any such laws, regulations. orders or procedures arising out of or in any way connected with the performance of this Agreement, Contractor may immediately take whatever action is deemed necessary by Contractor to remedy the claim of violation. Any and all costs or expenses paid or incurred by Contractor in taking such action shall be borne by Subcontractor, and may be deducted by Contractor from any payments due Subcontractor. The Subcontractor agrees to (1) comply with an safety rules and regulations and work practices and procedures established by the Contractor and/or the Owner; (2) take an necessary steps to promote safety and health on the job site; (3) cooperate with Contractor and other contractors in preventing and eliminating safety and health hazards; (4) train, instruct and provide adequate supervision to assure that its employees are aware of, and comply with, applicable Federal and State safety and health laws, standards, regulations and rules, safe and healthful work practices and all applicable safety rules, regulations, and work practices and procedures of the Contractor; (5) not create any hazards or expose any of its employees, employees of the Contractor or employees of contractors to any hazards; (6) immediately abate all hazards within its control regardless of whether it created such hazard; and (7) where the Subcontractor is aware of the existence of a hazard not within its control, notify the contractor of the hazard as well as warn exposed persons to avoid the hazard. Subcontractor shall notify Contractor of any personal injury requiring medical treatment of any of Subcontractor's employees or others at the Project site, or of significant damage to property arising in connection with Subcontractor's performance. as promptly as possible after the occurrence of such injury or damage. Within forty-eight (48) hours of such occurrence, Subcontractor shall furnish to Contractor a complete written report of such injury or damage.
(q) In the event of variations, conflicts, ambiguities or inconsistencies between or among the terms, provisions or conditions of this Subcontract and any other Contract Documents, the terms, provisions and conditions which grant greater rights or remedies to Contractor or impose higher standards with regard to the obligations, responsibilities and scope of work of the Subcontractor shall control. Notwithstanding any other provisions of this Subcontract or of the Contract Documents, disputes hereunder shall not be resolved by arbitration unless Contractor agrees in writing to arbitration of such specific dispute.
(r) The Subcontractor agrees to provide and furnish prior to commencing work, certificates in duplicate of insurance covering its work under this Contract for Workmen's Compensation, General Liability Insurance to include Bodily Injury and property Damage Insurance, and other insurance with limits and coverages as set forth in the Contract Documents or in Exhibit A attached hereto, whichever is greater. All policies of insurance shall be in "occurrence" form and with companies and in amounts acceptable to the Contractor, and shall not be subject to modifications or cancellation during the terms of the work hereunder without thirty (30) days prior written notice to the Contractor by certified or registered mail. Subcontractor will not change or terminate said policies without the written consent of the Contractor. The Subcontractor accepts exclusive liability for contribution tax or premiums for Unemployment Compensation Social Security. Withholding Tax and Workmen's Compensation.
(s) The Subcontractor agrees to furnish a bond guaranteeing its performance of this Subcontract, if so requested by the Contractor, in amount and form and with such surety as are acceptable to the Contractor.
The cost of the bond shall be paid by N/A ______________________.
(t) The Subcontractor furthermore understands and agrees that it shall not deal directly with representatives of the Owner, but shall handle all matters connected with this Contract, the work, or the furnishing of the materials or payment therefor, exclusively through the contractor, unless otherwise directed in writing by the Contractor. through
(u) This Subcontract shall be governed by the laws of the State of Maryland, without regard to principles of conflict of laws Any action or suit arising hereunder shall be brought in the jurisdiction where Contractor's principal office is located without regard to Principles of conflict of laws or forum non conveniens. in the event that arbitration is provided in the Owner-Contractor Agreement for disputes between Owner and Contractor, Subcontractor agrees, upon request of Contractor, to submit any related disputes as determined by Contractor in its sole discretion, to arbitration and consolidation of said disputes with any arbitration or administrative proceedings between Contractor and Owner or any other party.