Mead Johnson & Co., Inc. v. Kenco Group, Inc.

899 N.E.2d 1, 2009 Ind. App. LEXIS 21, 2009 WL 175088
CourtIndiana Court of Appeals
DecidedJanuary 15, 2009
Docket82A04-0807-CV-385
StatusPublished
Cited by8 cases

This text of 899 N.E.2d 1 (Mead Johnson & Co., Inc. v. Kenco Group, Inc.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mead Johnson & Co., Inc. v. Kenco Group, Inc., 899 N.E.2d 1, 2009 Ind. App. LEXIS 21, 2009 WL 175088 (Ind. Ct. App. 2009).

Opinion

OPINION

HOFFMAN, Senior Judge.

Third-Party Plaintiff/Appellant Mead Johnson & Company appeals the trial court’s grant of summary judgment in favor of Third-Party Defendant/Appellee Kenco Group, Inc. We reverse and remand with instructions.

Ricky Pharr was a Kenco employee working at the Mount Vernon, Indiana warehouse managed by Kenco for Mead Johnson. On September 29, 2003, Pharr allegedly suffered personal injuries while attempting to open the rear overhead door on a trailer owned by Ryder and leased by Mead Johnson.

Pharr filed a negligence action against Ryder, claiming that Ryder neglected to keep the trailer in good repair and that neglect caused Pharr’s injuries. Pharr also asserted that Mead Johnson was negligent because it failed to notify Ryder that the repairs were necessary. 1

Mead Johnson subsequently filed a third-party action against Kenco based upon an indemnity clause contained in the Warehouse Management Contract (the “Warehouse Contract”) signed by the two parties. Section 12(c) of the contract states:

[Kenco] agrees to indemnify and save harmless [Mead Johnson], its employees, agents, representatives, successors and assigns from any and all judgments, orders, awards, costs and expenses including attorney fees which [Mead Johnson], its agents, representatives, successors or assigns may incur or be required to pay out by reason of bodily injury (including death) or property damage caused by or incurred by the negligent acts of [Ken-co] or [Kenco’s] employees, agents, servants, contracts, representatives or other persons for whom [Kenco] is legally responsible.

Appellant’s App. at 118.

Kenco moved for summary judgment, alleging that the indemnity clause did not create an obligation to indemnify Mead Johnson in the Pharr lawsuit and that Mead Johnson had admitted Kenco was not negligent in some of its duties. However, Mead Johnson did claim that Kenco failed to maintain and provide its employees and others with a safe workplace and safety training and that Kenco breached its duty by allowing Pharr to be injured. A hearing was held in the trial court’s chambers, and, without outlining its reasoning, the trial court subsequently granted Kenco’s motion.

The purpose of summary judgment is to terminate litigation about which there is no factual dispute and which may be determined as a matter of law. Ratcliff v. Barnes, 750 N.E.2d 433, 436 (Ind.Ct.App. 2001), trans. denied. When reviewing the grant or denial of summary judgment, this court applies the same standard as the trial court. Id. Summary judgment is appropriate only if the designated evidentia-ry material shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. Generally, construction of a written contract is a question of law for which summary judgment is particularly appropriate. Merrillville Conservancy District *3 ex rel. Bd. of Directors v. Atlas Excavating, Inc., 764 N.E.2d 718, 724 (Ind.Ct.App. 2002).

The goal of contract interpretation is to ascertain and give effect to the parties’ intent. Id. In most cases, the intent of the parties to a contract is to be determined from the “four corners” of the contract. Id. Words used in a contract are to be given their usual and common meaning. Exide Corp. v. Millwright Riggers, Inc., 727 N.E.2d 473, 478 (Ind.Ct.App. 2000), trans. denied.

An indemnity agreement involves “a promise by one party (the indemnitor) to reimburse another party (the indemni-tee) for the indemnitee’s loss, damage, or liability.” Henthorne v. Legacy Healthcare, Inc., 764 N.E.2d 751, 756 (Ind.Ct. App.2002) (citations omitted). If the words of the indemnity clause are clear and unambiguous, they are to be given their plain and ordinary meaning. Id. The basic purpose of an indemnity clause is to “shift the financial responsibility to pay damages from the indemnitee to the in-demnitor.” Ozinga Transportation Systems, Inc. v. Michigan Ash Sales, Inc., 676 N.E.2d 379, 386 (Ind.Ct.App.1997), trans. denied. We construe an indemnity agreement “to cover all losses and damages to which it reasonably appears the parties intended it to apply.” Zebrowski & Asso ciates, Inc. v. City of Indianapolis, 457 N.E.2d 259, 261 (Ind.Ct.App.1983).

The primary basis for Kenco’s summary judgment motion, and its primary emphasis on appeal, is its belief that the indemnity clause in the Warehouse Contract is unenforceable because it lacks clear language requiring Kenco to indemnify Mead Johnson for Mead Johnson’s own negligence. Kenco points out that Pharr’s lawsuit seeks recovery from Mead Johnson for Mead Johnson’s alleged independent acts of negligence, and Kenco argues that there are no circumstances permitting Mead Johnson to recover indemnity for an adverse judgment.

Mead Johnson, on the other hand, points out (1) that it is not seeking indemnity for its own negligence, and (2) that its third-party action is consistent with the indemnity clause because it asks for indemnification based only on any fault allocated by the trier of fact to Kenco and/or Pharr (as Kenco’s employee).

The clear and unambiguous language of the indemnity clause provides that Kenco agrees to indemnify Mead Johnson for the negligence of both Kenco and its employees. We conclude that summary judgment is premature, as the trial court’s decision to grant summary judgment fails to recognize that allocation of fault by the trier of fact presents a genuine issue of material fact.

Both Mead Johnson and Kenco argue that their interpretation of the indemnity clause is supported by Hagerman v. Long, 741 N.E.2d 390 (Ind.Ct.App.2000), trans. denied. In Hagerman, James Scott was an employee of Long Electric, a subcontractor on a construction project. Hager-man was the general contractor on the project. Scott was injured when he was struck on the head by a falling light pole, and he filed a claim against Long for worker’s compensation benefits. Scott then filed suit against Hagerman, and Hager-man in turn filed a third party action against Long based upon an indemnity clause contained in the contract between Hagerman and Long. After the trial court denied Hagerman’s motion for summary judgment on the issue of whether the indemnity clause pertained to the litigation, Hagerman appealed to this court. Id. at 391.

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899 N.E.2d 1, 2009 Ind. App. LEXIS 21, 2009 WL 175088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mead-johnson-co-inc-v-kenco-group-inc-indctapp-2009.