Opinion
C.A. No.: N12C-11-252 FSS
04-30-2015
RE: John Slattery v. Pettinaro Construction Co., Inc, et al. v. Delcard Associates, LLC
Michael I. Silverman, Esquire Silverman, McDonald & Friedman 1010 North Bancroft Parkway, Suite 22 Wilmigton, DE 19805 William A. Crawford, Esquire Franklin & Prokopik 300 Delaware Avenue, Suite 1210 Wilmington, DE 19810 David G. Culley, Esquire Tybout, Redfearn & Pell 750 Shipyard Drive, Suite 400 Wilmington, DE 19899-2092
FRED S. SILVERMAN JUDGE Michael I. Silverman, Esquire
Silverman, McDonald & Friedman
1010 North Bancroft Parkway, Suite 22
Wilmigton, DE 19805
William A. Crawford, Esquire
Franklin & Prokopik
300 Delaware Avenue, Suite 1210
Wilmington, DE 19810
David G. Culley, Esquire
Tybout, Redfearn & Pell
750 Shipyard Drive, Suite 400
Wilmington, DE 19899-2092
Dear Counsel:
After a jury awarded Plaintiff $400,000 on his personal injury claim, Defendant Pettinaro Construction, Co., Inc. tendered $320,000 to Plaintiff. Now, Pettinaro seeks indemnification of $100,000, 25% of the verdict, from Defendant Delcard Associates, Inc.
This also memorializes the decision on the parties' pre-trial cross-motions for summary judgment regarding indemnification, which was deferred until after trial and reflects matters of law and undisputed facts. Finally, the court addresses Plaintiff's motion for costs.
See Hercules, Inc. v. AIU Ins. Co., 784 A.2d 481, 504 (Del. 2001).
I.
Defendant Court House LLC owns the former Daniel L. Herrmann Courthouse, which was under renovation as commercial space. Defendant Pettinaro, which owns Court House, was also the contractor. Defendant Delcard was Pettinaro's subcontractor. Plaintiff was working for Delcard on the building's flat roof when he slipped on snow and ice, falling and injuring himself.
Plaintiff filed for and received workers' compensation from Delcard, and he sued Pettinaro and Court House. Pettinaro filed an answer and a third-party complaint against Delcard, claiming indemnification under their subcontract agreement. The parties filed cross-motions for summary judgment, and supplemental briefing followed. As mentioned, the court deferred a ruling, pending trial.
See Diamond State Tel. Co. v. Univ. of Del, 269 A.2d 52 (Del. 1970) ("[A]n employer may be held liable for indemnity if he has breached an independent duty owed to a third party . . . . [T]hen the exclusive remedy provision in the Workers' Compensation Law has no application. . . . [Furthermore,] the right to indemnity is clear when that obligation arises from a separate contractual relation.") (citing 2A Larson, Workmen's Compensation Law § 76.00 (1970)).
II.
The case went to trial in December 2014. The jury returned a verdict, finding Pettinaro, Delcard, and Plaintiff negligent and that each party's negligence proximately caused Plaintiff's injuries. The jury further found that Pettinaro and Delcard failed to take reasonable steps to keep the premises free from snow and ice. The jury also found Plaintiff, himself, failed to exercise ordinary care. According to the jury, Pettinaro was 55% negligent, Delcard was 25% negligent, and Plaintiff was 20% negligent. Finally, as mentioned, the jury awarded Plaintiff $400,000 in damages.
III.
The parties dispute the contract's indemnification clause's applicability and enforceability. Pettinaro maintains that the contract's plain language and the fact that the jury found Delcard 25% negligent requires Delcard to reimburse Pettinaro for $100,000. Pettinaro argues that the indemnification clause, found in the AIA, form contract, which is incorporated into Pettinaro and Delcard's subcontract agreement, applies to Pettinaro and Delcard.
Delcard argues that although the clause requires Pettinaro to indemnify Court House, it does not require Delcard to indemnify Pettinaro. Delcard also argues that the indemnification clause is unenforceable and against public policy, as reflected in 6 Del. C. § 2704(a), because Pettinaro is attempting to indemnify itself from its own negligence.
See J. S. Alberici Constr. Co., Inc. v. Mid-West Conveyer Co., Inc., 750 A.2d 518, 521 (Del. 2000) ("[A] contractual provision requiring one party to indemnify another party for the second party's own negligence, whether sole or partial, 'is against public policy and is void and unenforceable.'").
IV.
The subcontract agreement between Delcard and Pettinaro states, "Subject to the terms of the GENERAL CONDITIONS Section 007000 . . . ." And, Section 007000 incorporates the AIA document A201-2007 in its entirety. The AIA contract includes an indemnification clause and a subcontractual relations clause. The AIA indemnification clause reads:
To the fullest extent permitted by law the Contractor shall indemnify and hold harmless the Owner . . . from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury . . . but only to the extent caused by the negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder . . . .The subcontractual relations clause reads:
By appropriate agreement, written where legally required for validity, the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by terms of the Contract Documents, and to assume toward the
Contractor all the obligations and responsibilities, including the responsibility for safety of the Subcontractor's Work, which the Contractor, by these Documents, assumes toward the Owner . . . .
First, based on the contract's plain language, the indemnification clause applies to Delcard and Pettinaro. Assuming, arguendo, that under the indemnification provision alone Delcard is only required to indemnify Court House and not Pettinaro, Delcard still loses. The subcontractual relations clause provides that Pettinaro, "shall require each Subcontractor [e.g. Delcard], to the extent of the Work to be performed by [Delcard] . . . to assume toward [Pettinaro] all the obligations and responsibilities . . . which [Pettinaro], by these Documents, assumes toward [Court House] . . . ." Therefore, because Pettinaro assumed the obligation to indemnify Court House, Delcard assumed the same obligation toward Pettinaro.
Next, as to enforceability, 6 Del. C. § 2704 does not apply. "Section 2704(a) relates to the public policy of certain contracts of purported indemnification." There may be a public policy concern where a contractual provision requires "one party to indemnify another party for the second party's own negligence." Here, however, the indemnification clause requires Delcard to indemnify Pettinaro "only to the extent caused by the negligent acts or omissions of [Delcard]." And, that is what Pettinaro now seeks - indemnification only for what the jury determined Delcard's negligence to be. Pettinaro is not seeking indemnification for Pettinaro's own negligence. Here, the $320,000 Pettinaro tendered to Plaintiff includes Delcard's share of the total negligence that caused Plaintiff's injury. Accordingly, 6 Del. C. § 2704 does not void the indemnification clause.
Volair Contr., Inc. v. AmQuip Corp., 829 A.2d 130, 134 (Del. 2003).
Id. (citing J.S. Alberici Constr. Co., Inc., 750 A.2d at 521).
See Id. (holding that the indemnification provision was valid because it did not indemnify AmQuip for AmQuip's employee's negligence).
V.
As mentioned, Plaintiff also timely filed a motion for costs under Superior Court Civil Rule 54, requesting expert costs and court costs. Specifically, Plaintiff requests $3,000.00 for Dr. Bandera's expert testimony, $455.00 for Dr. Bandera's video deposition, $440.80 for transcribing Dr. Bandera's deposition, $2,050.00 for Mr. Ferrier's testimony, and $563.50 for court costs.
Pettinaro does not object to Plaintiff's court costs. Pettinaro does, however, object to Plaintiff's medical expert costs. Pettinaro contends that Dr. Bandera's $3,000 fee is excessive because his testimony was recorded by video in his office and lasted only 36 minutes. Pettinaro suggests Plaintiff should be awarded $800.00, which is in line with this court's earlier holdings. Pettinaro also objects to the videographer's and court reporter's fees for Dr. Bandera's deposition, arguing they are duplicative and entirely unrecoverable because the transcript and video were not placed into evidence as exhibits.
E.g. Foley v. Elkton Plaza Assoc., LLC, C.A. No. 05C-05-176-PLA, 2007 WL 959521, at *2 (Del. Super. Mar. 30, 2007) (awarding $800 for a 37 minute deposition); Drayton v. Price, C.A. No. 08C-03-005 RRC, 2010 WL 154414, at *9 (Del. Super. Apr. 19, 2010) (awarding $1,100 for a 36 minute deposition at the doctor's office); Kerr v. Onusko, No. Civ.A.03C-05-030 WLW, 2004 WL 2735456, at *1 (Del Super. Oct. 20. 2004) (awarding $600 for a one hour and ten minute deposition at the doctor's office).
Pettinaro further objects to Plaintiff's construction expert's fees. Pettinaro argues Mr. Ferrier should not be compensated for trial preparation. Further, Mr. Ferrier spent more time traveling and waiting to testify than actually testifying. And, according to Pettinaro, Plaintiff insisted that another witness testify while Mr. Ferrier waited. Therefore, Pettinaro requests that the court cap Mr. Ferrier's fee at $500.00, which is four times his usual hourly rate for the time he actually spent testifying.
Superior Court Civil Rule 54(d) permits costs "as of course to the prevailing party upon application to the Court within ten (10) days of the entry of final judgment." "Prevailing" may mean succeeding on the main issue or a majority of claims. Moreover, amounts awarded and denying costs are matters of judicial discretion.
Super. Ct. Civ. R. 54(d).
See Graham v. Keene Corp., 616 A.2d 827, 829 (Del. 1992) ('[I]n considering an award of costs the prevailing party for such purposes is the one in whose favor a verdict is returned.").
See Donovan v. Del. Water & Air Res. Comm'n, 358 A.2d 717, 722-723 (Del. 1976).
Expert witness fees are also recoverable. But, these fees are "limited to time spent attending court for the purpose of testifying" and reasonable costs incurred traveling to and from the courthouse. When determining reasonable fees to award medical experts, the court often defers to the Medico-Legal Affairs Committee of the Medical Society of Delaware.
See 10 Del. C. § 8906.
Moyer v. Saunders, Civ. A. No. N10C-02-069 WCC, 2013 WL 4138116 (Del. Super. July 24, 2013).
Enrique v. State Farm Mut. Auto. Ins. Co., No. 08C-07-026, 2010 WL 2636845,*1 (Del. Super. June 30, 2010), aff'd, 16 A.3d 938 (Del. 2011); see also, Kerr, 2004 WL 2735456, at *1.
Here, Dr. Bandera's deposition lasted 36 minutes in his own office. No travel time or other expenses were involved. Based on the range of expert fees discussed in similar cases from this jurisdiction, $3,000 is excessive. Accordingly, the court will award to Plaintiff $800.00 for Dr. Bandera's expert testimony.
Note, supra note 6.
As to the costs associated with Dr. Bandera's deposition, Plaintiff is not entitled to recover both the videographer's and court reporter's fees. Transcript costs "will not be awarded when the deposition is introduced at trial via videotape" because the transcript's cost "becomes duplicative of the costs associated with video." Dr. Bandera's testimony was introduced at trial via DVD. Therefore, Plaintiff will only recover the videographer's costs, $455.00.
Kerr v. Onusko, No. CIV.A.03C-05-030 WLW, 2004 WL 2744607, at *1 (Del. Super. Oct. 20, 2004) (citing Midcap v. Sears, Roebuck and Co., 2004 WL 1588343, at *4 (Del.Super.); Cimino v. Cherry, No. CIV.A.98C-04-127 RRC, 2001 WL 589038, at *2 (Del. Super. May 24, 2001)).
As for Ferrier's expert costs, Pettinaro is correct that Plaintiff is not entitled to reimbursement for time spent preparing for trial. The remaining balance, $1,800, is the testimony fee, representing four hours of courthouse time. Most of that four hours, however, does not reflect his courtroom testimony. Accordingly, the court approves an expert fee of $800.00 (2 hours at $400.00 per hour). Finally, since Pettinaro does not dispute Plaintiff's request for costs, Plaintiff may recover $563.50 in court costs.
See State ex rel. Price v. 0.0673 Acres of Land, More or Less, in Balt. Hundred, Sussex Cnty., 224 A.2d 598, 602 (Del. 1966) ("Witness fees allowed under s 8906 should be limited to time necessarily spent in attendance upon the court for the purpose of testifying. This does not include time spent in listening to other witnesses for 'orientation', or in consulting and advising with a party or counsel or other witnesses during the trial."); Lockwood v. Wyatt, C.A. No. 03C-06-043 (JTV), 2006 WL 2338049, at *2 (Del. Super. July 20, 2006) ("[T]he time that [Plaintiff's liability expert] spent preparing for trial is not reimbursable.")
See Plauche v. Doctors for Emergency Servs, P.A. No. Civ.A.99C-07-115WCC, 2002 WL 31008045, at *2 (Del. Super. Aug. 30, 2002) (finding it was unreasonable to require Plaintiff to pay Defendant's doctor for 6.75 hours of courthouse time where most of that time was not related to testifying).
See Id. (finding it reasonable for defendant to pay for 3 hours of courthouse time, not 6.75 hours as plaintiff requested, and therefore awarded plaintiff $1,200 (3 hours at $400 per hour)). --------
VI.
For the foregoing reasons, Defendants / Third-Party Plaintiffs Pettinaro Construction Co., Inc. and Court House LLC's Motion for Summary Judgment is GRANTED, and Third-Party Defendant Delcard Associates, Inc.'s Motion for Summary Judgment is DENIED. Plaintiff's Motion for Costs is GRANTED, in part, and Plaintiff shall recover the following costs:
| Dr. Bandera's Trial Testimony | $800.00 |
| Dr. Bandera's Video Deposition | $455.00 |
| Mr. Ferrier's Trial Testimony: | $800.00 |
| Court Costs: | $563.50 |
| Total Costs Awarded: | $2,618.50 |
IT IS SO ORDERED.
Very Truly Yours,
/s/ Fred S. Silverman FSS:mes
oc: Prothonotary (Civil Division)
cc: Morgan A. Sack, Esquire