Burlington Coat Factory v. Grace Construction

• Court: Superior Court of Pennsylvania
• Decided: September 15, 2014
• Docket: 2036 EDA 2013
• Status: Unpublished

Opinion

J-A09035-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BURLINGTON COAT FACTORY OF IN THE SUPERIOR COURT OF PENNSYLVANIA, LLC and BURLINGTON PENNSYLVANIA COAT FACTORY WAREHOUSE CORPORATION,

Appellant

v.

GRACE CONSTRUCTION MANAGEMENT COMPANY, LLC

Appellee Nos. 2036 EDA 2013

Appeal from the Order Entered June 14, 2013 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): October Term, 2011, No. 001844

BEFORE: BOWES, J., OTT, J., AND JENKINS, J.

MEMORANDUM BY: JENKINS, J. FILED SEPTEMBER 15, 2014

This is an appeal by Burlington Coat Factory of Pennsylvania, LLC and

order granting summary judgment to Grace Construction Management

indemnity. We affirm.

Burlington Coat Factory Warehouse Corporation is the parent

corporation of Burlington Coat Factory of Pennsylvania, LLC, which operates

a store in Philadelphia, Pennsylvania. Grace, a general contractor, entered

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the store. The parties labeled the Agreement as between Grace and

ade name.

-

sub-contractors, suffered injuries when at the store when the doors to a

freight elevator closed and struck him in the back. Eddis and his wife filed a

personal injury action against BCF, Schindler Elevator Corporation

demanded a defense and indemnification from Grace pursuant to the

Agreement, but Grace rejected the demand. In October 2011, BCF filed a

separate action against Grace alleging breach of contract as well as counts

the accident, or, in the alternative, the Agreement required Grace to

In October 2012, the Eddises settled their action for $70,000, with BCF

contributing $35,000 and Schindler contributing $35,000. There was no

admission of liability in the settlement agreement.

BCF and Grace filed cross-motions for summary judgment. On June

2 J-A09035-14

require Grace to indemnify B

timely appeal1.

BCF raises the following issues on appeal:

1. Did the lower court err in granting summary judgment to [Grace] on a finding that only [BCF] could be liable for an injury in its elevator when there was evidence on which a jury could find that: a) the elevator did not malfunction; and b) whether it malfunctioned or not, the injury was caused, at least in part, by the negligence of [Grace] or those for whose acts [Grace] undertook a duty to indemnify [BCF]?

2. Did the lower court err in granting summary judgment to [Grace] on a conclusion of law that the construction contract did not require [Grace] to indemnify [BCF] for its own negligence when a general indemnification provision in the General Conditions of the contract benefitting numerous parties limited the indemnification duty to "the extent caused by" negligence of [Grace] or anyone working under it, but a more specific provision in the contract, relating only to [BCF], provided for an unlimited duty to indemnify?

3. Did the lower court err in granting summary judgment to [Grace] upon a conclusion of law [that Grace] satisfied its obligation to procure insurance naming [BCF] as an additional insured, when the insurance procured was not primary and,

burden of buying insurance for a construction project was defeated?

BCF Opening Brief, Statement Of Questions Involved. Stated more

succinctly, BCF contends that summary judgment was improper because (1)

1 The lower court did not order BCF to file a statement of matters complained of on appeal. 3 J-A09035-14

BCF has a valid cause of action against Grace for contribution, (2) Grace is

required to indemnify BCF under the Agreement, and (3) Grace is required

to obtain insurance that names BCF as an additional insured.

ainst Grace for contribution.

Contribution is available against any defendant, even one the original

plaintiff did not sue. Burch v. Sears, Roebuck & Co., 467 A.2d 615, 622

(Pa.Super.1983)

original proceeding ... via joinder of the additional defendants, see Pa.R.C.P.

an original defendant who has previously been held liable to the original

Bianculli v. Turner Const. Co., 640 A.2d 461, 465

(Pa.Super.1994), appeal denied, 651 A.2d 541 (1994). Where the

defendants in a contribution action are not defendants in the original case,

plaintiff and prove that the new defendant was a joint tortfeasor in that his

tortious c Mattia v. Sears, Roebuck

& Co., 531 A.2d 789, 791 (1987), appeal denied, 519 Pa. 660 (1988).

BCF contends, and Grace does not dispute, that Eddis was performing

work for Grace when he suffered his injuries. BCF asserts that Grace

negligently trained and supervised Eddis with respect to his use of the

ce that

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harm. We conclude that the trial court properly entered summary judgment

failure to prove causation against Grace.

In an action in negligence, the plaintiff must prove four elements: (1)

a duty or obligation recognized by law; (2) breach of the duty; (3) causal

connection between the actor's breach of the duty and the resulting injury;

and (4) actual loss or damage suffered by complainant. Merlini ex rel.

Merlini v. Gallitzin Water Authority, 980 A.2d 502, 506 (Pa.2009). The

impose liability upon anyone as there remains to be proved the link of

Lux

v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286 (Pa.Super.2005)

uct must be

Hamil v.

Bashline

art denoting the point at which legal responsibility attaches for the harm to

another arising out of some act of defendant; and it may be established by

evidence that the defendant's negligent act or failure to act was a

Id. Proximate

ulting in plaintiff's

injury is so remote as to appear highly extraordinary that the conduct could

5 J-A09035-14

Lux, supra, 887 A.2d at 1286-87 (citation

omitted).

Proximate cause is a question of law that the court must determine

before placing the issue of actual cause before the jury. Id. A

negligence, if any, was so remote that as a matter of law, [the actor] cannot

be held legally responsible for [the] harm which sub Id.

Therefore, the court must determine whether the injury would have been

foreseen by an ordinary person as the natural and probable outcome of the

act complained of. Id.

BCF argues that Eddis operated the freight elevator negligently by

elevator. BCF also argues that Grace was negligent for failing to train Eddis

how to operate the elevator and for failing to follow its own safety standards

in the use of

prohibition on using the elevator unassisted, when viewed in light of

evidence that Grace generally disregarded its own safety standards, were all

factors that substantially contributed

exper

6 J-A09035-14

2 . R.R.

531-547a. Ross did not at Id.

Expert testimony is necessary when the subject matter of a case is

beyond the ken of the average layperson. Vazquez v. CHS Professional

Practice, P.C., 39 A.3d 395, 398-99 (Pa.Super.2012). In our view, the

question

requires expert testimony. At least four parties BCF, Schindler, Grace and

Eddis himself

making it difficult to decide which actor(s) caused the accident without the

testimony of an accident reconstructionist and/or expert on the use of

2 Mr. Ross concluded:

Based on the results of my investigation and within a reasonable degree of engineering and scientific certainty, I have concluded Mr. Eddis's injuries reported at the subject property were caused by BCF's failure to properly maintain and repair the subject elevator, gate and associated components. My investigation revealed BCF repeatedly ignored requests to repair the gate and doors of the subject elevator, creating an unsafe, unreliable and hazardous condition that resulted in Mr. Eddis injuries. I have also concluded Schindler failed to properly repair the subject elevator, specifically the alarm bell prior to the incident resulting in Mr. Eddis's injuries.

It is evident the incident was caused by a failure of the safety shoe and alarm bell of the subject elevator. . .on the date of the incident or by the gate completely derailing from its track, resulting in the alarm bell not sounding. These conditions and the lack of a proximity edge installed on the subject elevator resulted in Mr. Eddis's injuries on the date of the incident.

R.R. 547-48. 7 J-A09035-14

freight elevators. Moreover, Eddis submitted a detailed expert report

attributing the cause of the accident to BCF and Schindler while remaining

silent about Grace. Given the number of potentially blameworthy actors and

-crafted expert report that points away from Grace, it was

incumbent upon BCF to submit an expert report establishing a causal nexus

step dooms its action for contribution.

A recent decision by this Court, MIIX Insurance Co. v. Epstein

( ), 937 A.2d 469 (Pa.Super.2009), is instructive. There, a hospital

that was found liable in a medical malpractice action brought an action for

contribution against two hospital residents who were not parties to the

original action3. The trial court granted summary judgment to the residents

in the contribution action because the hospital failed to produce expert

reports establishing their negligence. We affirmed, reasoning that expert

the residents. Id. at 474 n. 6. Unlike MIIX, this case does not involve

professional negligence, but we still think its rationale applies to accident

scenarios such as the case at bar. MIIX teaches that when the underlying

action involves intricate facts under which multiple persons may share

liability, and a party defendant in the underlying action seeks contribution

3 The verdict slip in the original action inquired whether the residents were negligent, and the jury answered these questions in the affirmative. But because the residents were not parties in the original actio responses were not binding on the residents. Id., 937 A.2d at 473-74. 8 J-A09035-14

from a non-party, it is important, and often essential, for the party

defendant to obtain an expert report that proves the non-

this case, BCF ignored lesson by failing to submit an expert report

esta

matter of law.

In its second issue on appeal, BCF argues that the Agreement between

We disagree. There are two conflicting indemnity provisions in the

Agreement -- and since BCF drafted the Agreement, the more restrictive

provision applies, under which BCF cannot obtain indemnification.

to make good a loss which another has incurred or may incur by acting at

the request of the former, or for Potts v. Dow

Chemical Co.,

agreements are to be narrowly interpreted in light of the parties' intentions

Consolidated Rail Corp. v.

Delaware River Port Auth., 880 A.2d 628, 632 (Pa.Super.2005)

interpreting the scope of an indemnification clause, the court must consider

Widmer Engineering, Inc. v. Dufalla, 837 A.2d 459, 472 (Pa.Super.2003)

9 J-A09035-14

(citations and quotation marks omitted). To establish the right to

indemnification, the alleged indemnitee (herein BCF) must establish scope of

the indemnification agreement; the nature of the underlying claim; its

coverage by the agreement; the reasonableness of the alleged expenses;

and, where the underlying action is settled rather than resolved by payment

of judgment, the validity of the underlying claim and the reasonableness of

the settlement. McClure v. Deerland Corp., 585 A.2d 19, 22

(Pa.Super.1991).

A party cannot obtain indemnification for its own negligence unless the

contract clearly and unequivocally provides for such indemnification. Ruzzi

v. Butler Petroleum Co., 588 A.2d 1, 7 (Pa.1991); Perry v. Payne, 66 A.

553 (Pa.1907). As our Supreme Court

language is clear and unambiguous ... we must opt for the interpretation

that does not shoulder [subcontractor] with the fiscal responsibility for

Greer v. City of Phila., et al.,

795 A.2d 376, 380 (Pa.2002). Thus, where an agreement includes multiple

contradictory indemnity provisions drafted by the same person, we construe

the agreement against the drafter and enforce the narrower provision.

Chester Upland School District v. Edward J. Meloney, Inc., 901 A.2d

1055, 1061-62 (Pa.Super.2006).

10 J-A09035-14

The record reflects that on August 28, 2009, BCF drafted the

Agreement and mailed it to Grace. R.R. 418. The Agreement includes two

indemnity provisions. The first (Provision I) states:

To the fullest extent permitted by law, the Contractor (Grace) shall indemnify and hold harmless BCF, the Architect, the Engineer, the

any of them from and against claims, damages, losses and expenses, including but not limited to

performance of the Work4, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including loss of use resulting therefrom, but only to the extent caused in whole or in part by 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 expenses is caused in part by a party indemnified hereunder.

R.R. 425-26 [emphasis added]. The second provision (Provision II) states:

[Grace] releases BCF and assumes entire responsibility and liability for any and all claims and/or damages or any nature or character whatsoever arising under the Contract Documents, by operation of law, or in any other manner with respect to work covered by this CONTRACT and agrees to indemnify and save BCF harmless from and against all claims, demands, liabilities, interest,

of whatsoever kind or nature, whether for property

by the Contract Documents, and includes all other labor, materials,

a lengthy list of tasks that Grace is obligated to perform. 11 J-A09035-14

damage, personal injury or bodily injury (including death) to any and all persons, whether employees of [Grace], BCF or others, or otherwise, caused or occasioned thereby, resulting therefrom, arising out of or therefrom, or occurring in connection therewith...

R.R. 432 [emphasis added].

The first and narrower indemnity provision does not obligate Grace to

on our reasoning in Chester Upland School District, supra, we find that

the first and narrower indemnity provision precludes BCF from obtaining

indemnification. In that decision, the School District contracted with various

parties, among them Contractor and Architect, for the purchase and

installation of a new chiller and cooling tower for the HVAC system at

Chester High School. The chiller malfunctioned, and the School District filed

an action against, among other parties, Contractor and Architect. Architect

filed a cross-claim against Contractor demanding indemnification for costs

and attorney fees incurred in defending itself

claims.

Architect drafted two conflicting indemnification provisions in the

contractual documents. The first, more restrictive provision stated:

To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner, Architect, Architect's consultants, and agents and employees of any of them 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

12 J-A09035-14

that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including loss of use resulting therefrom, but only to the extent caused in whole or in part by negligent acts or omissions of the Contractor5, 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. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Paragraph...

The obligations of the Contractor under th[is] Paragraph. . . shall not extend to the liability of the Architect, the Architect's consultants, and agents and employees of any of them arising out of (1) the preparation or approval of maps, drawings, opinions, reports, surveys, Change Orders, designs or specifications, or (2) the giving of or the failure to give direction or instructions by the Architect, the Architect's consultants, and agents and employees of any of them provided such giving or failure to give is the primary cause of the injury or damage.

Id., 901 A.2d at 1059-60 (emphasis in original). Under this provision,

Contractor was only liable if the claim arose from either its negligence or

omission, in whole or in part, or from that of its subcontractor. Moreover,

this provision specifically limited Contractor's liability to Architect so as not

to include claims against Architect arising from its performance of various

duties.

5 Interestingly, this italicized language is identical to the crucial italicized language in the Provision I of the Agreement. See Provision I, page 10, supra. 13 J-A09035-14

The second (and broader) provision stated:

The Contractor shall indemnify and save harmless the Owner, the Board, its members and officers, the Architect, his assistants, and all others who may act for the Board or the Owner from all suits and actions of every kind, nature and description brought by anyone whatsoever against them or any of them in any manner connected with the Contract here proposed or the work thereunder; provided that nothing herein stated shall be construed to preclude the Contractor from maintaining an action at law for money which may be due him under the Contract.

Id. at 1060 (emphasis in original). Under this provision, Contractor was

liable for all claims brought against Architect in connection with the contract.

d

Id.

agreement against Architect and concluded that the first, more restrictive

provision applied, Id. at 1061-62, and held that Architect could not obtain

indemnification under this provision.

Chester Upland School District

decision against BCF in the case at bar. The record demonstrates that BCF

drafted both indemnity provisions in the Agreement with Grace. Grace

asserted in its summary judgment papers below that BCF drafted the

Agreement, R.R. 584, and BCF did not deny this point. BCF mailed the

Agreement with both provisions to Grace, R.R. 418, and there is no evidence

that Grace amended either provision before signing the Agreement.

14 J-A09035-14

Moreover, the indemnity provisions are contradictory. Provision I requires

Grace to indemnify BCF only to the extent Grace is negligent; Provision II

requires Grace to indemnify BCF for BC

Grace is negligent. Chester Upland School District requires us to resolve

this ambiguity by construing the Agreement against the drafter, BCF, and

enforcing the more restrictive indemnity provision, Provision I. Under this

Not only does our interpretation of the Agreement follow Chester

Upland School District

directive to deny indemnification to a party for its own negligence unless the

agreement clearly and unequivocally provides this remedy. The Supreme

Court stated in Greer that an indemnification agreement is not clear and

unambiguous unless

indemnitor (Grace) intends to indemnify the indemnitee (BCF) for the

Id., 795 A.2d at 380. Instead of putting the

matter beyond doubt, the presence of conflicting indemnity provisions in the

Agreement creates doubt as to whether Grace intends to indemnify BCF for

narrowly, we are unwilling to award indemnification under these

circumstances.

15 J-A09035-14

its duty to obtain insurance naming BCF as an additional insured. The

question of whether Grace obtained such insurance would only become

relevant if Grace had a duty to pay contribution or indemnity to BCF. For

the reasons provided above, no such duty exists6.

Order affirmed.

Judge Ott joins in memorandum.

Judge Bowes files concurring and dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/15/2014

6 Since our decision rests on the grounds discussed above, we will not

because it voluntarily paid the settlement to Eddis and (2) BCF has no

Agreement with Grace instead of Burlington Coat Factory of Pennsylvania, LLC and Burlington Coat Factory Warehouse Corporation. 16