N.P.P. Contractors, Inc. v. John Canning & Co.

715 A.2d 139, 1998 D.C. App. LEXIS 144, 1998 WL 448324
CourtDistrict of Columbia Court of Appeals
DecidedAugust 6, 1998
Docket96-CV-794
StatusPublished
Cited by13 cases

This text of 715 A.2d 139 (N.P.P. Contractors, Inc. v. John Canning & Co.) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
N.P.P. Contractors, Inc. v. John Canning & Co., 715 A.2d 139, 1998 D.C. App. LEXIS 144, 1998 WL 448324 (D.C. 1998).

Opinion

RUIZ, Associate Judge.

In this appeal, a general contractor asserts that it is entitled, by contract, to indemnification from its subcontractor even if the general contractor’s negligence caused the damages for which indemnification is sought. The trial court entered a directed verdict against the claim for indemnification, explaining that “the contract does not unambiguously provide that [the subcontractor indemnitor] will indemnify [the general contractor indemnitee] for the contractor’s own negligence.” Based on controlling precedent, we conclude that the indemnification clause in the contract is not ambiguous on the broad scope of the indemnification provision, and therefore reverse and remand.

I.

The Accident

Dorothea McColl, an employee of John Canning & Company (Canning), sued N.P.P. Contractors, Inc. (N.P.P.) in a tort action for personal injuries and related damages she sustained while working on a renovation project in which Canning was a subcontractor. 1 N.P.P., the general contractor, in turn filed a third-party complaint against Canning for indemnification based upon a clause in their contract. The jury in the primary trial found that N.P.P.’s negligence in erecting, maintaining and/or inspecting the scaffolding was a proximate cause of McColl’s injuries, and awarded McColl $413,000 in damages for her personal injuries and McColl’s husband $5,000 in damages for loss of consortium.

The Contract and the Indemnification Clause

The indemnification clause at issue, labeled “Liability and Indemnity Insurance,” reads in relevant part as follows:

The Subcontractor [Canning] shall indemnify and save harmless the Contractor [N.P.P.] and Owner from any and all claims and liabilities for property damage and persona] injury, including death, arising out of or resulting from or in connection with the execution of the work.

When entering into the agreement, Canning altered and initialed six different clauses in the contract, which had been drafted by N.P.P. The Liability and Indemnity Insurance clause was not among them. 2

The Directed Verdict

While the jury was deliberating in the primary ease, the trial court entered a directed verdict for Canning stating:

I think that the contractual clause is ambiguous, and as such under the case law, including Rivers and Bryan versus HBE Corporation, 3 I am ruling in favor of Can *141 ning and Company because it does not— the contract does not unambiguously provide that Canning Company, the subcontractor, will indemnify the contract [sic] N.P.P. for the contractor’s own negligence.

In rejecting N.P.P.’s argument that the contract language unambiguously provided for full indemnification, the trial court referred to “testimony [by N.P.P.’s president] that he interpreted [the indemnification clause] as only providing indemnification of work done by ... Canning’s negligence.” 4

II.

“In reviewing the grant or denial of a motion for directed verdict, this court, like the trial court, must view the evidence and all reasonable inferences in the light most favorable to the nonmoving party.” Washington Metro. Area Transit Auth. v. Bell, 632 A.2d 414, 415 (D.C.1993). Where, as here, the case is tried without a jury, “the court may review both as to the facts and the law, but the judgment may not be set aside except for errors of law unless it appears that the judgment is plainly wrong or without evidence to support it.” D.C.Code § 17-305 (1997). Whether or not a contract is ambiguous is a question of law, which this court considers de novo. See American Bldg. Maintenance Co. v. L’Enfant Plaza Properties, Inc., 655 A.2d 858, 861 (D.C. 1995).

This court has recently decided two cases which summarize and clarify the rule of interpretation we apply to claims for indemnification, based on contract, of a negligent general contractor against a non-negligent subcontractor, W.M. Schlosser Co. v. Maryland Drywall Co., 673 A.2d 647 (D.C.1996), and Grunley Construction Co. v. Conway Corp., 676 A.2d 477 (D.C.1996). 5

In Schlosser this court recognized that
[a]n indemnity provision ... “should not be construed to permit an indemnitee to recover for his [or her] own negligence unless the court is firmly convinced that such an interpretation reflects the intention of the parties.” If a party “expects to shift responsibility for its negligence ... the mutual intention of the parties to this effect should appear with clarity from the face of the contract.”

673 A.2d at 653 (quoting United States v. Seckinger, 397 U.S. 203, 211-12, 90 S.Ct. 880, 25 L.Ed.2d 224 (1970)); see also Rivers & Bryan, supra, 628 A.2d at 635. This court then declared that it was

satisfied that the language of the contract 6 is sufficiently clear that [the subcontractor] is responsible not only for its own negligence, but that its liability also “stretche[s] to encompass [the contractor’s] negligence as well.”

*142 Schlosser, supra, 678 A.2d at 653 (quoting Seckinger, supra, 397 U.S. at 213, 90 S.Ct. 880).

Highlightirig the contract language in which the subcontractor agreed to indemnify the contractor for “any and all claims ... arising out of ... or in connection with the execution of the work,” this court in Schlos-ser concluded that

[t]he language of th[e] contract, from the viewpoint of the parties at the time the contract was made, is “so broad and sweeping as to plainly reveal an intent to encompass losses incurred in whole or in part by the negligence of the indemnitee.”

Schlosser, supra, 673 A.2d at 653 (quoting Moses-Ecco Co. v. Roscoe-Ajax Corp., 115 U.S.App. D.C. 366, 369, 320 F.2d 685, 688 (1963)). 7 The opinion in Schlosser pointed to Princemont Construction Corp. v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bowyer v. Reinhardt
District of Columbia Court of Appeals, 2022
Holt v. Walsh Grp.
316 F. Supp. 3d 274 (D.C. Circuit, 2018)
Holt v. Walsh Group
District of Columbia, 2018
Parker v. John Moriarty & Associates
189 F. Supp. 3d 38 (District of Columbia, 2016)
Wallace v. National Railroad Passenger Corp.
5 F. Supp. 3d 452 (S.D. New York, 2014)
McMillan v. Alstom Signaling, Inc.
District of Columbia, 2011
In Re Fort Totten Metrorail Cases
808 F. Supp. 2d 154 (District of Columbia, 2011)
Jenkins v. Washington Metropolitan Area Transit Authority
808 F. Supp. 2d 154 (District of Columbia, 2011)
Red Roof Inns, Inc. v. Scottsdale Insurance
419 F. App'x 325 (Fourth Circuit, 2011)
Cevasco v. National Railroad Passenger Corp.
606 F. Supp. 2d 401 (S.D. New York, 2009)
Krieger v. Wilson Corp.
2006 NMCA 034 (New Mexico Court of Appeals, 2005)
Nortel Networks, Inc. v. Gold & Appel Transfer, S.A.
298 F. Supp. 2d 81 (District of Columbia, 2004)
McNally & Nimergood v. Neumann-Kiewit Constructors, Inc.
648 N.W.2d 564 (Supreme Court of Iowa, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
715 A.2d 139, 1998 D.C. App. LEXIS 144, 1998 WL 448324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/npp-contractors-inc-v-john-canning-co-dc-1998.