Bridgestone/Firestone, Inc. v. Ogden Plant Maintenance Co. of North Carolina

548 S.E.2d 807, 144 N.C. App. 503, 2001 N.C. App. LEXIS 530
CourtCourt of Appeals of North Carolina
DecidedJuly 3, 2001
DocketCOA00-400
StatusPublished
Cited by16 cases

This text of 548 S.E.2d 807 (Bridgestone/Firestone, Inc. v. Ogden Plant Maintenance Co. of North Carolina) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bridgestone/Firestone, Inc. v. Ogden Plant Maintenance Co. of North Carolina, 548 S.E.2d 807, 144 N.C. App. 503, 2001 N.C. App. LEXIS 530 (N.C. Ct. App. 2001).

Opinions

WALKER, Judge.

This appeal involves plaintiffs claim for indemnity from defendants arising out of an industrial accident which resulted in the deaths of two individuals. The accident occurred on 9 September 1994 at a tire manufacturing facility, owned by Bridgestone/Firestone, Inc. (plaintiff), in Wilson County, North Carolina.

Plaintiff contracted with Ogden Plant Maintenance Company of North Carolina (defendant Ogden) to maintain the plant and operate its powerhouse, which generated energy for the plant’s manufacturing process and included two large fuel storage tanks (tanks). Plaintiff also contracted with Budd Services, Inc. (defendant Budd) to provide security for the plant and to issue “hot work” permits which allowed jobs to be performed by independent contractors who engage in welding or other types of “hot work” at the plant. The contracts between plaintiff and each defendant included a provision obligating each defendant to indemnify plaintiff from any and all losses suffered by plaintiff arising out of defendants’ respective acts of negligence at the plant.

[505]*505Prior to 9 September 1994, defendant Ogden determined that two of the tanks needed measuring devices. Defendant Ogden then requisitioned plaintiff for the parts and labor for this job, which included the services of an off-facility independent contractor, A. B. Electric Services, Inc. (ABES), that defendant Ogden had selected. Plaintiff agreed to supply the parts and contracted with ABES to perform the installation of the measuring devices.

On 9 September 1994, ABES arrived at the plant to install the measuring devices. ABES first determined that pipes would need to be attached to the top of each tank to house the measuring devices and therefore requested defendant Budd to issue a “hot-work” permit for the welding necessary to attach the pipes. After defendant Budd issued the permit, ABES employees proceeded with their welding work on top of one of the tanks. During this task, the tank exploded from the heat generated by the welding and resulted in the deaths of both employees as well as the destruction of the tank.

The estates of the deceased welders filed wrongful death suits alleging negligence and gross negligence by plaintiff, defendant Ogden and defendant Budd. Plaintiffs motion for summary judgment was denied. Defendants Ogden and Budd then settled the claims prior to trial and plaintiff settled the claims against it during trial. Plaintiff subsequently filed this action seeking indemnity and/or contribution from defendants for its costs and sums paid to settle the underlying claims. Plaintiff also sought the costs of repair to its property destroyed during the accident. From the trial court’s granting of defendants’ motions for judgment on the pleadings, plaintiff appeals.

In its assignments of error, plaintiff argues the trial court erred in granting defendants’ motions for judgment on the pleadings. Plaintiff contends it is entitled to be indemnified for its costs and sums paid to settle the claims and for its property damage pursuant to indemnity provisions in the contracts with defendants because the accident did not arise from plaintiff’s negligence but from the negligence of defendants.

At the outset, we note that when a trial court considers a motion for judgment on the pleadings pursuant to Rule 12(c) of our Rules of Civil Procedure, all allegations in the non-movant’s pleadings are deemed admitted. Ragsdale v. Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499 (1974) (citations omitted); N.C.R. Civ. P. 12(c) (1999). The motion is granted when the movant, held to a strict standard, shows that “no material issue of [fact] exists and that he is clearly entitled [506]*506to judgment.” Ragsdale, 286 N.C. at 137, 209 S.E.2d at 499, citing Southern Ohio Bank v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 479 F.2d 478 (6th Cir. 1973). The purpose of the motion is to dispose of baseless claims and to ensure that a party is not precluded from a full and fair hearing on the merits. Id.

Contractual indemnity provisions in this State are controlled by N.C. Gen. Stat. § 22B-1 (1999), which provides:

Any promise or agreement in, or in connection with, a contract or agreement relative to the design, planning, construction, alteration, repair or maintenance of a building, structure, highway, road, appurtenance or appliance. . . purporting to indemnify or hold harmless the promisee, the promisee’s independent contractors, agents, employees, or indemnitees against liability for damages arising out of bodily injury to persons or damage to property proximately caused by or resulting from the negligence, in whole or in part, of the promisee, its independent contractors, agents, employees, or indemnitees, is against public policy and is void and unenforceable. Nothing contained in this section shall prevent or prohibit a contract, promise or agreement whereby a promisor shall indemnify or hold harmless any promisee or the promisee’s independent contractors, agents, employees or indemnitees against liability for damages resulting from the sole negligence of the promisor, its agents or employees....

(emphasis added). In other words, a construction indemnity agreement may purport to indemnify a promisee from damages arising from negligence of the promisor, but any provision seeking to indemnify the promisee from its own negligence is void. “The indemnity provisions to which G.S. § 22B-1 apply are those construction indemnity provisions which attempt to hold one party responsible for the negligence of another.” International Paper Co. v. Corporex Constructors, Inc., 96 N.C. App. 312, 315, 385 S.E.2d 553, 555 (1989) (holding that where contract provision which violated N.C. Gen. Stat. § 22B-1 was not a central feature of the contract, the illegal provision was severable from the otherwise valid indemnity contract).

In the instant case, the indemnity provision in the contract between plaintiff and defendant Ogden is as follows in pertinent part:

Except as provided in Article XIII of this contract, [defendant Ogden] shall indemnify [plaintiff] and save it harmless from dam[507]*507age to or theft of [plaintiffs] property and from all claims and judgments for injury or death to persons or property damage (including costs of [litigation] and attorney’s fees) made or obtained against [plaintiff] by third persons including [plaintiffs] and [defendant Ogden’s] employees and agents, based on injuries to person or property, in any manner caused by, incident to, connected with, resulting or arising from the performance of this contract or the presence of [defendant Ogden’s] employees, and/or agents on [plaintiff’s] premises, regardless of whether such claims are alleged to be caused by negligence, or otherwise, on the part of [plaintiff] or its employees, excepting however, injury to or death of employees of [defendant Ogden], from any cause whatsoever.

By this provision, plaintiff seeks indemnity for costs and sums paid as a result of defendant Ogden’s negligence. Plaintiff is therefore not attempting “to hold [defendant Ogden] responsible for the negligence of [plaintiff].” Id.

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Bridgestone/Firestone, Inc. v. Ogden Plant Maintenance Co. of North Carolina
548 S.E.2d 807 (Court of Appeals of North Carolina, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
548 S.E.2d 807, 144 N.C. App. 503, 2001 N.C. App. LEXIS 530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bridgestonefirestone-inc-v-ogden-plant-maintenance-co-of-north-ncctapp-2001.