Hurlburt v. Northern States Power Co.

549 N.W.2d 919, 1996 Minn. LEXIS 511, 1996 WL 355284
CourtSupreme Court of Minnesota
DecidedJune 27, 1996
DocketC0-94-1515
StatusPublished
Cited by4 cases

This text of 549 N.W.2d 919 (Hurlburt v. Northern States Power Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hurlburt v. Northern States Power Co., 549 N.W.2d 919, 1996 Minn. LEXIS 511, 1996 WL 355284 (Mich. 1996).

Opinions

OPINION

COYNE, Justice.

What began as a fairly typical injured construction worker’s action against a third party who is not connected to the worker’s employment relationship has now resolved itself into a dispute between two insurers. James Hurlburt was injured in the course of his employment with Imperial Developers, Inc., the excavation and grading subcontractor on a construction project. Hurlburt commenced an action against Northern States Power Company and Kraus-Anderson Con[920]*920struction Company, the general contractor on the project. Kraus-Anderson, as third-party plaintiff claiming a right of indemnity from its subcontractor, then brought in Imperial Developers, Inc. as third-party defendant. Relying on Holmes v. Watson-Forsberg Co., 488 N.W.2d 473 (Minn.1992), the district court granted Kraus-Anderson partial summary judgment against Imperial Developers on the ground that the subcontractor had contracted to “ ‘cover’ Kraus-Anderson with insurance or to indemnify to the extent of the insurance promised.”

On trial of the main action, the jury found that plaintiff Hurlburt was 15% at fault with respect to his injury, that 85% of the causal negligence with respect to Hurlburt’s injuries was attributable to Kraus-Anderson, and that neither Imperial Developers nor Northern States Power Company was negligent at all. Judgment in the amount of $902,700 was entered against Kraus-Anderson in favor of James Hurlburt.

Imperial Developers appealed from the judgment in the amount of $984,555.69 entered against Imperial Developers in favor of Kraus-Anderson, representing the following items:

Amount of verdict payable by Kraus-Anderson $902,700.00
Pre- and post-verdict interest 60,831.12
Hurlburt’s costs and disbursements 21,024.57
$984,555.69

The judgment awarded to Kraus-Anderson, in addition to the $984,555.69 based on Hurl-burt’s claim, attorney fees and costs in the amount of $257,255.25 and provided that Imperial Developers should also be liable for all costs and attorney fees incurred in connection with any appeals. The court of appeals affirmed the judgment in all respects. We reverse.

The circumstances giving rise to the dispute between Kraus-Anderson and Imperial Developers are these:

In the spring of 1989 Rolche, Inc., as owner, engaged Kraus-Anderson to act as general contractor for the construction of the Hill-wind Office Plaza in Fridley, Minnesota. Rolche and Kraus-Anderson entered into a written contract in the form promulgated in 1987 by the American Institute of Architects as AIA Document Alll. In Article 11 of the General Conditions of the Contract for Construction, AIA Document A201-1987, entitled Insurance and Bonds, the following paragraphs appear:

11.1 CONTRACTOR’S LIABILITY INSURANCE
11.1.1 The contractor shall purchase from and maintain in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located such insurance as will protect the Contractor from claims set forth below which may arise out of or result from the Contractor’s operations under the Contract and for which the Contractor may be legally liable, whether such operations be by the Contractor or by a Subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable:

Paragraph 11.1.1 goes on to describe seven types of claims to be covered by such insurance: workers’ compensation; bodily injury, sickness, disease or death of a Kraus-Anderson employee or of any other person; “damages insured by usual personal injury liability coverage” sustained as a result of an offense related to the employment of the injured person; property damage other than to the Work of the contract; damages arising out of the ownership, maintenance or use of a motor vehicle; and contractual liability. Paragraph 11.1.3 required Kraus-Anderson to file certificates of insurance with the Owner prior to commencement of the Work of the contract.

On July 12, 1989 Kraus-Anderson, as contractor, and Imperial Developers, as Subcontractor, entered into a Standard Subcontract Agreement, 1985 edition, a form prepared by the Associated General Contractors of Minnesota, for the excavation and grading work called for by the plans and specifications for the Hillwind Office Plaza project.

Numbered paragraph 7 of the undertakings to which the Subcontractor agreed in the Standard Subcontract provided an all-encompassing indemnity agreement secured by insurance:

[921]*921To obtain, maintain and pay for such insurance as may be required by the General Contract, the rider attached hereto, or by law, and to furnish the Contractor satisfactory evidence that it has complied with this paragraph, and to obtain and furnish to the Contractor an undertaking by the insurance company issuing each such policy that such policy will not be cancelled except after fifteen (15) days notice to the Contractor of its intention to so do.
The Subcontractor agrees to assume entire responsibility and liability, to the fullest extent permitted by law, for all damages or injuries to all persons, whether employees or otherwise, and to all property, arising out of it, resulting from or in any manner connected with, the execution of the work provided for in this Subcontract or occurring or resulting from the use by the Subcontractor, his agents or employees, of materials, equipment, instrumental-ities or other property, whether the same be owned by the Contractor, the Subcontractor or third parties, and the Subcontractor, to the fullest extent permitted by law, agrees to indemnify and save harmless the Contractor, his agents and employees from' all such claims including, without limiting the generality of the foregoing, claims for which the Contractor may be or may be claimed to be, liable and legal fees and disbursements paid or incurred to enforce the provisions of this paragraph and the Subcontractor further agrees to obtain, maintain and pay for such general liability insurance coverage and endorsements as will insure the provisions of this paragraph.

Two riders were attached to and made a part of the Subcontract. Attachment A was the printed insurance rider provided for attachment to the AGO Standard Subcontract Agreement. That form describes the types and limits of liability of the insurance which the Subcontractor was to obtain, and it generally parallels paragraph 11.1 of the contract between the owner and the general contractor. The insurance rider, however, required 30 days notice of intent to cancel rather than the 15 days provided in the Standard Subcontract. No doubt because the all-encompassing indemnity agreement set out at numbered paragraph 7 of the Standard Subcontract runs afoul of Minn. Stat. § 337.02 (1994), which was first enacted in 1983, the parties modified numbered paragraph 7 by typewritten Attachment B:

Notwithstanding the provisions of Paragraph 7 of this Subcontract Agreement, the indemnity set forth therein shall apply only to the extent that the underlying injury or damage is attributable to the negligence or otherwise wrongful act or omission, including breach of a specific contractual duty, of Subcontractor or Subcontractor’s independent contractors, agents, employees or delegatees.

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Hurlburt v. Northern States Power Co.
549 N.W.2d 919 (Supreme Court of Minnesota, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
549 N.W.2d 919, 1996 Minn. LEXIS 511, 1996 WL 355284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hurlburt-v-northern-states-power-co-minn-1996.