Burns v. Dewitt & Associates, Inc.

826 S.W.2d 884, 1992 Mo. App. LEXIS 546, 1992 WL 55143
CourtMissouri Court of Appeals
DecidedMarch 25, 1992
DocketNo. 17674
StatusPublished
Cited by4 cases

This text of 826 S.W.2d 884 (Burns v. Dewitt & Associates, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burns v. Dewitt & Associates, Inc., 826 S.W.2d 884, 1992 Mo. App. LEXIS 546, 1992 WL 55143 (Mo. Ct. App. 1992).

Opinion

MAUS, Judge.

Larry A. Burns (Burns), an architect, brought this action against DeWitt & Associates (DeWitt), a construction company, to recover attorneys’ fees Bums incurred in defending a lawsuit for personal injuries, brought by an employee of a subcontractor. The action was based upon an Indemnification clause of a construction contract. The trial court entered summary judgment in favor of Burns for $8,406.72. DeWitt appeals. The following is a summary of the dispositive facts established by the evi-dentiary material.

High Point Shopping Center, Inc., entered into a contract with DeWitt for the construction of a new Consumers Market. Burns-Foster Architects, (Burns-Foster), a partnership, was the architectural firm for this project. The American Institute of Architects’ “Standard Form of Agreement Between Owner and Contractor” included the following General Condition.

“4.18 INDEMNIFICATION

4.18.1 To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner and the Architect and their agents and employees from and against all claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss or expense (1) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including the loss of use resulting therefrom, and (2) is caused in whole or in part by any negligent act or omission of the Contractor, any Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this Paragraph 4.18.”

Johnny Grubb, an employee of Western Fireproofing Company, a roofing subcontractor, while working on construction of the new Consumers, fell from the roof sustaining injuries. Johnny Grubb and his wife brought suit for his personal injuries and her loss of consortium in twenty-two separate counts against High Point, various owners of the real property, Consumers Market, Inc., Industrial Development Authority of Osage Beach, Missouri, Hel-ton Construction Company, Inc., and Burns-Foster. Plaintiffs Grubb in Counts XIX and XX, alleged Burns-Foster was negligent in:

“a. That [Burns-Foster] failed to properly supervise the construction of the building which they designed, b. That [Burns-Foster] failed to take reasonable action to ensure that adequate precautions were taken to protect workers, including Plaintiff, from injuries while working, at a height of twenty feet and over.”

Bums-Foster’s motion for summary judgment in the Grubb action was sustained.

Burns-Foster architectural firm subsequently dissolved. Larry Burns then brought this action to recover attorneys’ fees incurred as a result of having defended the Grubb action. Burns alleged he was entitled to recover those fees pursuant to the contractual provision labeled “Indemnification”.

By its answer, DeWitt alleged it did not know Bums’ residence, admitted it was a corporation and denied the remainder of the allegations of the petition. DeWitt alleged three affirmative defenses. They were failure to state a cause of action, failure to join an indispensable party and Bums’ “failure to comply with and abide by the terms and conditions of the contract.”

By its answers to interrogatories, DeWitt specified that the indispensable party not joined was Western Fireproofing Company of Kansas, Inc. DeWitt further specified Bums failed to abide by the contract in [887]*887that he "failed to timely tender defenses to DeWitt & Associates, Inc. in the underlying Grubb case.”

Bums filed twenty-one “Requests for Admissions to Defendant”. Generally speaking, those requests covered every fact required to support Bums’ petition and right to recover. DeWitt admitted requests 1 through 20. In response to Request 21, DeWitt denied the conclusion that Bums was entitled to indemnification under the Indemnification provision of the construction contract. As stated, the trial court entered a summary judgment for Burns. DeWitt has attempted to state three points on appeal.

DeWitt’s first point is:

“The trial court erred in granting summary judgment in favor of respondent Bums and against appellant DeWitt because there exists a genuine issue of material fact as to whether or not the claim presented by respondent Burns is one which is eligible for indemnification under the provisions of the indemnification clause contained in the general conditions of the contract for construction.”

Rule 84.04(d) requires points relied on to “state briefly and concisely what actions or rulings of the court aré sought to be reviewed and wherein and why they are claimed to be erroneous....” This point obviously does not state “wherein and why” Bums’ claim is not eligible for indemnification.

“So stated, plaintiff’s points are mere abstract, conclusionary observations which totally fail to state wherein and why the trial court erred in granting summary judgment and what issue of fact precluded entry of the judgment.” Blanks v. Cantwell, 578 S.W.2d 349, 350 (Mo.App.1979).

DeWitt’s first point, as stated, preserves nothing for appellate review. Cf. Blanks v. Cantwell, supra. Also see Miller v. Guze, 820 S.W.2d 576 (Mo.App.1991).

DeWitt is not aided by looking to its argument under this point. That argument is premised upon the proposition that Counts XIX and XX alleged Bums “was a separate defendant in this case sued independently for various acts or omissions which constituted its own negligence.” Therefore, DeWitt argues, the Grubb claims did not arise “from the performance of the work” and was not “caused in whole or in part by any negligent act or omission of the Contractor” as required by the Indemnification clause.

DeWitt’s isolation on two counts of the 22-count petition is misplaced for two reasons. In this action the Grubb petition is evidentiary material. It defines the Grubb claims which Burns-Foster was required to defend and which resulted in the attorneys fees. In determining if the Grubb claims fall within the ambit of the Indemnification clause the entire Grubb petition must be considered. That petition makes it evident Grubb fell during the construction of the building, “the performance of the work”. The petition also alleges the fall was the fault of the general contractor, as well as Burns-Foster.

Moreover, Bums’ Requests for Admissions included the following.

“12. That at the time of his injury, Johnny Grubb was employed by Western Fireproofing Company.
13. That at the time of the injury of Johnny Grubb, Western Fireproofing Company was a subcontractor of defendant as defined in the contract attached to plaintiff’s Petition as Exhibit ‘A’.
14. That any injuries sustained by Johnny Grubb were caused in whole or in part by the negligent act or omission of either Johnny Grubb, defendant, Western Fireproofing Company, or some other subcontractor.”

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Cite This Page — Counsel Stack

Bluebook (online)
826 S.W.2d 884, 1992 Mo. App. LEXIS 546, 1992 WL 55143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burns-v-dewitt-associates-inc-moctapp-1992.