NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3590-23
PAUL SOBOTOR,
Plaintiff-Respondent,
v.
MT. ARLINGTON HOLDINGS, LLC,
Defendant-Appellant,
and
DOUBLE O LANDSCAPE DESIGN, LLC,
Defendant-Respondent.
Argued May 22, 2025 – Decided August 5, 2025
Before Judges Susswein and Bergman.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2173-21.
Timothy P. Smith argued the cause for appellant (Kinney Lisovicz Reilly & Wolff PC, attorneys; Kevin E. Wolff, of counsel and on the briefs; Timothy P. Smith, on the briefs). Deirdre M. Dennis argued the cause for respondent Double O Landscape Design, LLC (Law Offices of Linda S. Baumann, attorneys; Deirdre M. Dennis, on the brief).
PER CURIAM
This case arises from a dispute involving a contract wherein codefendant
Double O Landscape agreed to perform snow and ice removal services for an
apartment complex owned by defendant Mt. Arlington Holdings, LLC. Mt.
Arlington appeals from an order granting summary judgment to Double O
Landscape on its cross-claim for indemnification. Based on our de novo review
of the record and applicable legal principles, we affirm.
I.
We summarize the pertinent facts from the record in a light most favorable
to Mt. Arlington, the non-moving party, as required by Rule 4:46-2. In his
complaint, plaintiff Paul Sobotor alleged on February 16, 2021 he was injured
in a slip-and-fall accident which occurred in the parking lot of an apartment
complex owned by Mt. Arlington. claimed both Mt. Arlington and Double O
were negligent by failing to remove snow and ice from the complex's parking
lot which caused him to fall and sustain injuries. At the time of the incident,
Mt. Arlington and Double O had a written contract which required Double O to
supply the "labor and equipment necessary" to perform plowing, shoveling, and
A-3590-23 2 salting of Mt. Arlington's parking lot. The contract included two specific
paragraphs addressing indemnification. Paragraph two of the contract states in
pertinent part:
During operations and after completion of operations [Mt. Arlington] agrees to indemnify and save harmless [Double O] and its employees against any and all claims by [Mt. Arlington] , it's [sic] employees or third parties, their heirs, executors, administrators, successors, surrogates or assignees, arising on account of death or injuries to persons or damage to property, arising out of use of, or traveling at or onto the property, whether or not such claim [for] damage, injury or death results from negligence of [Mt. Arlington] , [Double O] or others. [Mt. Arlington] shall defend all suits and claims arising from or incidental to the work under the agreement, without expense or annoyance to [Double O] or its employees.
[Emphasis added.]
Paragraph four of the contract states:
Indemnity: To the fullest extent permitted by law, [Double O] shall be responsible for claims to bodily injury and property damage due to [Double O's] negligent snow plowing work that may arise at [Mt. Arlington's] premises while [Double O] is physically on premises. To the fullest extent permitted by law, [Mt. Arlington] shall defend, indemnify and hold harmless [Double O], its owners, agents, consultants, employees and subcontractors from all claims for bodily injury and property damage that may arise from [Mt. Arlington's] premises including an[y] acts or omissions by [Mt. Arlington] or [Mt. Arlington's] subcontractors whether employed directly or indirectly for ice which forms from day time melting from snow
A-3590-23 3 and ice which is removed from, brought in by or in between vehicles.
After a snowfall, Double O performed plowing and salting at the premises
until 10:00 p.m. on February 15, 2021. Plaintiff's accident occurred at 4:30 a.m.
the next morning. In his deposition, plaintiff testified he was on his way to work
when the incident occurred. Plaintiff testified "[i]t was raining" at the time of
his fall and there was "about a foot and a half of snow on the ground." He
testified he went to the bottom of his apartment steps, took around four steps
toward his car and then fell in the parking lot area. The Mt. Arlington Boro
Police Department Incident Report states plaintiff advised them that he slipped
on ice.
Prior to trial, plaintiff and Double O resolved their dispute. Double O
preserved its cross-claim for indemnification against Mt. Arlington. On the first
day of trial, with the consent of all counsel, the court held argument on Double
O's motion requesting summary judgment on its cross-claim for indemnification
against Mt. Arlington.
The primary dispute was whether the indemnification provisions in the
contract satisfied the legal requirements of Azurak v. Corporate Property
Investors, wherein the Supreme Court held in order to bring a negligent
indemnitee within an indemnification agreement, the agreement must
A-3590-23 4 specifically reference the negligence or fault of the indemnitee by explicit and
unequivocal language. 175 N.J. 110, 112-13 (2003).
Double O argued the terms of the snow removal contract satisfied the
requirements of Azurak and it was entitled to indemnification for its own
negligence. Double O asserted although the contract does not "contain the bright
line language of Azurak . . ., it specifically states [Mt. Arlington] would defend
[and] indemnify [Double O] for any injury resulting from negligence of [Mt.
Arlington], [Double O] or others."
In response, Mt. Arlington argued the contract's two clauses which
addressed indemnification failed to specifically require indemnification for
Double O's own negligence. Mt. Arlington contended the two indemnity clauses
were inconsistent, confusing, and failed to meet the clear and unambiguous
standard required by Azurak to enforce the indemnity provisions in Double O's
favor.
The trial court found "the clear and unambiguous language within . . .
section four of the indemnity, which is supplemented by paragraph two, to
reflect the parties’ intentions" that Mt. Arlington is required to indemnify
Double O for claims arising from its own negligence and granted Double O's
motion for summary judgment. Thereafter, on the third day of trial Mt.
Arlington settled with plaintiff. The terms of settlement specifically preserved
A-3590-23 5 Mt. Arlington's right to appeal the trial court's summary judgment order
requiring it to indemnify Double O.
On appeal, Mt. Arlington contends the indemnity provisions in the
contract do not require indemnification to Double O for its own negligence
because the provisions are not compliant with Azurak. Mt. Arlington asserts
paragraph four of the contract requires each party to indemnify the other only to
the extent of their respective fault. Mt. Arlington further argues paragraph two
of the contract makes no provision for it to indemnify Double O for Double O 's
own negligence. Lastly, it asserts the inclusion of two contradictory
indemnification clauses in the contract render the indemnity provisions
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3590-23
PAUL SOBOTOR,
Plaintiff-Respondent,
v.
MT. ARLINGTON HOLDINGS, LLC,
Defendant-Appellant,
and
DOUBLE O LANDSCAPE DESIGN, LLC,
Defendant-Respondent.
Argued May 22, 2025 – Decided August 5, 2025
Before Judges Susswein and Bergman.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2173-21.
Timothy P. Smith argued the cause for appellant (Kinney Lisovicz Reilly & Wolff PC, attorneys; Kevin E. Wolff, of counsel and on the briefs; Timothy P. Smith, on the briefs). Deirdre M. Dennis argued the cause for respondent Double O Landscape Design, LLC (Law Offices of Linda S. Baumann, attorneys; Deirdre M. Dennis, on the brief).
PER CURIAM
This case arises from a dispute involving a contract wherein codefendant
Double O Landscape agreed to perform snow and ice removal services for an
apartment complex owned by defendant Mt. Arlington Holdings, LLC. Mt.
Arlington appeals from an order granting summary judgment to Double O
Landscape on its cross-claim for indemnification. Based on our de novo review
of the record and applicable legal principles, we affirm.
I.
We summarize the pertinent facts from the record in a light most favorable
to Mt. Arlington, the non-moving party, as required by Rule 4:46-2. In his
complaint, plaintiff Paul Sobotor alleged on February 16, 2021 he was injured
in a slip-and-fall accident which occurred in the parking lot of an apartment
complex owned by Mt. Arlington. claimed both Mt. Arlington and Double O
were negligent by failing to remove snow and ice from the complex's parking
lot which caused him to fall and sustain injuries. At the time of the incident,
Mt. Arlington and Double O had a written contract which required Double O to
supply the "labor and equipment necessary" to perform plowing, shoveling, and
A-3590-23 2 salting of Mt. Arlington's parking lot. The contract included two specific
paragraphs addressing indemnification. Paragraph two of the contract states in
pertinent part:
During operations and after completion of operations [Mt. Arlington] agrees to indemnify and save harmless [Double O] and its employees against any and all claims by [Mt. Arlington] , it's [sic] employees or third parties, their heirs, executors, administrators, successors, surrogates or assignees, arising on account of death or injuries to persons or damage to property, arising out of use of, or traveling at or onto the property, whether or not such claim [for] damage, injury or death results from negligence of [Mt. Arlington] , [Double O] or others. [Mt. Arlington] shall defend all suits and claims arising from or incidental to the work under the agreement, without expense or annoyance to [Double O] or its employees.
[Emphasis added.]
Paragraph four of the contract states:
Indemnity: To the fullest extent permitted by law, [Double O] shall be responsible for claims to bodily injury and property damage due to [Double O's] negligent snow plowing work that may arise at [Mt. Arlington's] premises while [Double O] is physically on premises. To the fullest extent permitted by law, [Mt. Arlington] shall defend, indemnify and hold harmless [Double O], its owners, agents, consultants, employees and subcontractors from all claims for bodily injury and property damage that may arise from [Mt. Arlington's] premises including an[y] acts or omissions by [Mt. Arlington] or [Mt. Arlington's] subcontractors whether employed directly or indirectly for ice which forms from day time melting from snow
A-3590-23 3 and ice which is removed from, brought in by or in between vehicles.
After a snowfall, Double O performed plowing and salting at the premises
until 10:00 p.m. on February 15, 2021. Plaintiff's accident occurred at 4:30 a.m.
the next morning. In his deposition, plaintiff testified he was on his way to work
when the incident occurred. Plaintiff testified "[i]t was raining" at the time of
his fall and there was "about a foot and a half of snow on the ground." He
testified he went to the bottom of his apartment steps, took around four steps
toward his car and then fell in the parking lot area. The Mt. Arlington Boro
Police Department Incident Report states plaintiff advised them that he slipped
on ice.
Prior to trial, plaintiff and Double O resolved their dispute. Double O
preserved its cross-claim for indemnification against Mt. Arlington. On the first
day of trial, with the consent of all counsel, the court held argument on Double
O's motion requesting summary judgment on its cross-claim for indemnification
against Mt. Arlington.
The primary dispute was whether the indemnification provisions in the
contract satisfied the legal requirements of Azurak v. Corporate Property
Investors, wherein the Supreme Court held in order to bring a negligent
indemnitee within an indemnification agreement, the agreement must
A-3590-23 4 specifically reference the negligence or fault of the indemnitee by explicit and
unequivocal language. 175 N.J. 110, 112-13 (2003).
Double O argued the terms of the snow removal contract satisfied the
requirements of Azurak and it was entitled to indemnification for its own
negligence. Double O asserted although the contract does not "contain the bright
line language of Azurak . . ., it specifically states [Mt. Arlington] would defend
[and] indemnify [Double O] for any injury resulting from negligence of [Mt.
Arlington], [Double O] or others."
In response, Mt. Arlington argued the contract's two clauses which
addressed indemnification failed to specifically require indemnification for
Double O's own negligence. Mt. Arlington contended the two indemnity clauses
were inconsistent, confusing, and failed to meet the clear and unambiguous
standard required by Azurak to enforce the indemnity provisions in Double O's
favor.
The trial court found "the clear and unambiguous language within . . .
section four of the indemnity, which is supplemented by paragraph two, to
reflect the parties’ intentions" that Mt. Arlington is required to indemnify
Double O for claims arising from its own negligence and granted Double O's
motion for summary judgment. Thereafter, on the third day of trial Mt.
Arlington settled with plaintiff. The terms of settlement specifically preserved
A-3590-23 5 Mt. Arlington's right to appeal the trial court's summary judgment order
requiring it to indemnify Double O.
On appeal, Mt. Arlington contends the indemnity provisions in the
contract do not require indemnification to Double O for its own negligence
because the provisions are not compliant with Azurak. Mt. Arlington asserts
paragraph four of the contract requires each party to indemnify the other only to
the extent of their respective fault. Mt. Arlington further argues paragraph two
of the contract makes no provision for it to indemnify Double O for Double O 's
own negligence. Lastly, it asserts the inclusion of two contradictory
indemnification clauses in the contract render the indemnity provisions
ambiguous and unenforceable.
II.
We review the grant of summary judgment de novo, applying the same
legal standards as the trial court. Green v. Monmouth University, 237 N.J. 516,
529 (2019). Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
challenged and that the moving party is entitled to a judgment or order as a
matter of law." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29
(1995) (quoting R. 4:46-2(c)). A genuine issue of material fact exists when "the
A-3590-23 6 competent evidential materials presented, when viewed in the light most
favorable to the non-moving party, are sufficient to permit a rational factfinder
to resolve the alleged disputed issue in favor of the non-moving party." Id. at
540.
The interpretation or construction of a contract is a legal question,
reviewed de novo on appeal. Driscoll Constr. Co. v. State, Dep't of Transp., 371
N.J. Super. 304, 313 (App. Div. 2004); see also Celanese Ltd. v. Essex Cnty.
Improvement Auth., 404 N.J. Super. 514, 528 (App. Div. 2009) (holding "unless
the meaning is both unclear and dependent on conflicting testimony[,]" the court
interprets the terms of a contract as a matter of law). In our review, the "trial
court's interpretation of the law and legal consequences that flow from" it are
"not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm.
of Manalapan, 140 N.J. 366, 378 (1995)
The court's role "in construing a contractual indemnity provision is the
same as in construing any other part of a contract—it is to determine the intent
of the parties." Kieffer v. Best Buy, 205 N.J. 213, 223 (2011). Generally, courts
give contractual provisions "their plain and ordinary meaning." Ibid. (quoting
M.J. Paquet, Inc. v. N.J. Dep't of Transp., 171 N.J. 378, 396 (2002)). "However,
indemnity provisions differ from provisions in a typical contract in one
important aspect. If the meaning of an indemnity provision is ambiguous, the
A-3590-23 7 provision is 'strictly construed against the indemnitee.'" Ibid. (quoting Mantilla
v. NC Mall Assocs., 167 N.J. 262, 272 (2001)).
III.
A.
We initially address Mt. Arlington's argument that paragraph two of the
contract does not provide for indemnification of Double O for its own
negligence. Mt. Arlington contends paragraph two fails to distinguish between
Double O's own negligence and the negligence of Mt. Arlington or other entities.
Mt. Arlington argues this provision lacks the specificity required under Azurak
to compel indemnification to Double O and the trial court erred by finding
otherwise. We disagree.
Below, we break down paragraph two of the contract including only the
relevant language applicable to the issues on appeal, which provides the
necessary clarity.
During operations and after completion of operations [Mt. Arlington] agrees to indemnify and save harmless [Double O] and its employees against any and all claims by . . . , third parties . . . , arising on account of . . . injuries to persons . . . arising out of use of, or traveling at or onto the property, whether or not such claim [for] . . . injury . . . results from negligence of . . . [Double O] or others.
A-3590-23 8 We agree with the trial court's interpretation of the indemnity language in
paragraph two and conclude it is compliant with the principles set forth in
Azurak.
We are unpersuaded by Mt. Arlington's argument that the indemnity
language in the contract is similar to the indemnity clauses addressed in Englert
v. The Home Depot, 389 N.J. Super. 44 (App. Div. 2006) and Mautz v. J.P. Patti
Co., 298 N.J. Super. 13 (App. Div. 1997). In both Englert and Mautz, the courts
found neither the terms "to the extent" nor "regardless of" sufficient to satisfy
the required "unequivocal" expression of intention required to obligate a party
to indemnify another for its own negligence. See Englert, 389 N.J. Super. at 56
(determining neither the phrase "regardless of" nor "to the extent" answered the
question of whether the indemnification included the indemnitee's own share of
fault); See also Mautz, 298 N.J. Super. at 21 (determining the provision
requiring indemnification for injuries "to the extent caused in whole in part by"
the negligence of the subcontractor provides indemnification only to the extent
of the subcontractor's negligence). Paragraph two of the contract does not
include the terms "to the extent" or "regardless of." Instead, paragraph two of
the contract used the terms "whether or not." We agree with the trial court this
formulation closely aligns with the language in Estate of D'Avila v. Hugo Neu
Schnitzer East, 442 N.J. Super 80 (App. Div. 2015).
A-3590-23 9 In Estate of D'Avila, we upheld a trial court order requiring
indemnification of an indemnitee for its own negligence based on an
indemnification provision which explicitly required the indemnitor to indemnify
against claims "regardless of whether or not" the indemnitee was at fault. The
provision stated:
"To the fullest extent permitted by law," S&B shall indemnify Hugo Neu "against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of [S&B's work under the contract], including, without limitation, any such claim, damage, loss or expense attributable to bodily injury, . . . caused by the acts or omissions of [S&B], . . . or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by [Hugo Neu]."
[Id. at 116-117 (emphasis added).]
Similarly, the terms of paragraph two of the present contract obligates Mt.
Arlington to indemnify Double O for claims "whether or not" the claims arose
from Double O's negligence or the negligence of others. We conclude, as we
did in Estate of D'Avila, this language supports and requires indemnification for
the negligence of the indemnitee, in this case Double O. We therefore reject Mt.
Arlington's argument that the "whether or not" phraseology in paragraph two is
not clear and unequivocal.
A-3590-23 10 B.
We next address Mt. Arlington's contention that paragraph four of the
contract is a "mutual indemnity obligation" which requires each party to
indemnify the other only to the extent of their respective fault. Mt. Arlington
asserts paragraph four does not specify with "explicit language" that it will
indemnify Double O for its own negligence, and therefore the indemnity
agreement is not "clear, concise, [and] unambiguous under the case law." Mt.
Arlington asserts this provision requires only reciprocal indemnification for
each party's own negligence. We disagree.
Under our ordinary rules of construction, contract provisions are to be
"read as a whole, without artificial emphasis on one section, with a consequent
disregard for others." Borough of Princeton v. Bd. of Chosen Freeholders of the
Cnty. of Mercer, 333 N.J. Super. 310, 325 (App. Div. 2000).
The trial court found paragraph four
to be broad and consistent with the other verbiage of paragraph two, indicating that the indemnification would apply even against the contractor’s own negligence. While Mt. Arlington is focused on whether the last provision of paragraph four, "whether employed directly or indirectly for ice which forms during daytime melting," that seems to be just a further amplification of what would be included.
A-3590-23 11 The court also found the paragraph to be consistent with Azurak, as the
language within the contract and the intention of the parties was "clear and
unambiguous." We conclude, as did the trial court, there is no ambiguity,
uncertainty or inconsistency between paragraph two and paragraph four when
read together. Paragraph two provides general indemnity to Double O from Mt.
Arlington including indemnification for Double O's own negligence where
paragraph four primarily provides clarity concerning indemnification for claims
which may arise from melting ice or snow which re-freezes.
We further note it is not disputed at the time of plaintiff's fall that Double
O had completed its work and was not physically on the premises. The disputed
contractual provisions require Mt. Arlington to indemnify Double O for claims
which arise (1) after its "completion of operations" or (2) when they are not
"physically on premises." In sum, we discern no error in the trial court's
interpretation of the contract which clearly required Mt. Arlington to indemnify
Double O for plaintiff's claim which arose after Double O had completed
operations or was not physically on the premises.
Finally, we reject the premise of Mt. Arlington's contention the two
"contradictory" indemnity provisions render the contract ambiguous and
unenforceable. As we noted in the preceding section, the two indemnification
A-3590-23 12 paragraphs are not contradictory. Consequently, we conclude Mt. Arlington's
contention in this regard is without merit.
To the extent we have not addressed any of Mt. Arlington's remaining
arguments, we conclude they are without sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-3590-23 13