Horner v. Department of Commerce

17 Ct. Cl. 165

• Court: West Virginia Court of Claims
• Decided: December 29, 1988
• Docket: CC-88-164
• Status: Published

Opinion

PER CURIAM:

Claimant has a five-year contract with the Department of Commerce to provide horses to tourists at Watoga State Park, a facility of the respondent. On December 22, 2987, the barn at Watoga State Park was destroyed by fire, apparently set by an arsonist. Claimant seeks $5,827.00 for personal items and equipment which were damaged in the fire.

Claimant testified that he had formerly maintained insurance coverage on his horses and equipment. However, at the time of this incident, claimant had discontinued his insurance coverage, allegedly at the suggestion of Craig Ackerman, Superintendent of Watoga State Park. He said he had been informed that the State's insurance policy was adequate to cover the items in the barn.

The contract, or License Agreement, between Watoga State Park and Jack S. Horner is dated October 28, 1981. The pertinent provisions of the agreement are the following:

"2. The Licensee under this agreement shall be deemed an independent contractor and as such shall be solely responsible for all debts and other liabilities incurred in the operation of his business under this license agreement.

8. The Licensee assumes all risk in the operation of this license and shall be solely responsible and answerable in damages for all accidents or injuries to persons or property and hereby covenants and agrees to indemnify and keep harmless the State of West Virginia, the Department and its officers and employees from any and all claims, suits, losses, damage or injury to persons or property of whatsoever kind and nature, whether direct or indirect, arising out of the operation. of this license or the carelessness, negligence or improper conduct of the Licensee or any servant, agent or employee which responsibility shall not be limited to the insurance coverage herein provided for.

18. This instrument contains the entire agreement and all representations of the parties hereto, and no modifications or additions shall be valid and binding on the Department unless in writing and signed by an officer thereof, subsequent to the date of this license."

It is clear from the terms of the lease agreement that claimant, as an independent contractor, assumed all risk in the operation of business, and that the contract represents the complete agreement. The Court finds that the terms of the lease agreement are clear as to the absence of liability on the part of respondent. Therefore, the Court is of the opinion to, and must, deny this claim.

Claim disallowed.