Pugh v. Prairie Construction Co.

602 N.W.2d 805, 1999 Iowa Sup. LEXIS 272
CourtSupreme Court of Iowa
DecidedNovember 17, 1999
DocketNo. 97-1941
StatusPublished
Cited by1 cases

This text of 602 N.W.2d 805 (Pugh v. Prairie Construction Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pugh v. Prairie Construction Co., 602 N.W.2d 805, 1999 Iowa Sup. LEXIS 272 (iowa 1999).

Opinion

LARSON, Justice.

Carl Pugh was injured while working on a construction project at Upper Iowa University in Fayette. He sued the project’s general contractor and two architectural firms retained as consultants. Pugh settled his suit, setting the stage for an indemnity claim by the architects. The district court denied indemnity and one of the architectural firms appealed. We affirm.

I. Facts and Prior Proceedings.

Pugh was employed by Hudson Construction Services, Inc., which provided drywall and acoustical tile services on the university project. He was injured when he stepped on a panel of unsupported gypsum sheathing and fell seventeen feet to a concrete floor. Pugh sued Prairie Construction Co., Inc., the general contractor, on the ground it had negligently supervised the project, and he sued the two architectural firms including the present appellant, Martin & Pitz Associates (MPA), for providing a defective architectural design.

After the initial suit was settled, the architects, who were looking to recoup their expenses of settlement, pressed for resolution of their indemnity claims. The district court, concluding that an allocation of fault was essential to resolving the indemnity issues, submitted the question to a jury. The jury found Pugh was 100% at fault. The court then resolved the indemnification issue.

II. The Indemnity Provisions.

The sole issue on this appeal is whether MPA is entitled to be indemnified by Prairie, the general contractor, and Hudson, as a subcontractor, for the amounts MPA had spent in settling Pugh’s claim. This turns largely on the interpretation of the construction contracts. The contract between Prairie, as general contractor, and the university, as owner, incorporated by reference the “general conditions of the contract for construction,” which provides in pertinent part, in paragraph 3.18.1:

[T]he Contractor shall indemnify and hold harmless the Owner [University], Architect [MPA], Architect’s consultants, and agents and employees ... from and against claims, damages, losses and expenses ... but only to the extent caused in ivhole or in part by negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them 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 a party indemnified hereunder.

(Emphasis added.)

Paragraph 5.3.1 of the general conditions provides:

[T]he Contractor shall require each Subcontractor ... to be bound to the Contractor by terms of the Contract Documents, and to assume toward the Contractor all the obligations and responsibilities which the Contractor, by these Documents, assumes toward the Owner and Architect. Each subcontract agreement shall preserve and protect the rights of the Owner and Architect under the Contract Documents with respect to the Work to be performed by the Subcontractor so that subcontracting thereof will not prejudice such rights....

In addition, paragraph XI of the subcontract agreement between Prairie and Hudson states that Hudson agrees:

[807]*807To be bound to the Contractor by the terms of the General Contract, to conform and to comply with the provisions of the General Contract, to furnish such shop drawings or samples as may be required, and to assume toward the Contractor all the obligations and responsibilities that the Contractor assumes in and by the General Contract toward the Owner, insofar as they are applicable to this Subcontract.

MPA argues these provisions, when taken together, make Hudson, as a subcontractor, liable to provide indemnification to the same extent as the general contractor. MPA seeks indemnity from both Hudson and the general contractor.

III. The Imputed Negligence Issue.

According to MPA, Pugh’s negligence was imputed to Hudson, as his employer and, in turn, from Hudson to Prairie under the agreements quoted above. This court has never decided whether an employee’s fault in causing his own injury is “negligence” that may be imputed to an employer for indemnity purposes. According to some authorities, negligence connotes a breach of duty to another. For example, the Restatement defines an act as negligent “if the actor intends it to affect, or realizes or should realize that it is likely to affect, the conduct of another, a third person, or an animal in such a manner as to create an unreasonable risk of harm to the other.” Restatement (Second) of Torts § 303, at 94 (1965) (emphasis added). We have said “the real basis of negligence in the primary sense is not carelessness but behavior which should be recognized as involving an unreasonable danger to others.” Rinkleff v. Knox, 375 N.W.2d 262, 265 (Iowa 1985) (emphasis added). We have also defined it as “conduct that ‘falls below the standard established by law for the protection of others against unreasonable risk of harm.’ ” Marcus v. Young, 538 N.W.2d 285, 288 (Iowa 1995) (emphasis added) (citation omitted).

In Drewery v. Daspit Brothers Marine Divers, Inc., 317 F.2d 425 (5th Cir.1963), a potential indemnitor argued that “the doctrine of imputed negligence is inapplicable since the negligence was that of the employee toward himself. The argument goes that a person may not commit, a tort on himself; and absent tort, negligence is not imputable.” Drewery, 317 F.2d at 427. The court agreed:

[It is clear that] imputed negligence, based as it is on a fiction, works to hold the master for injuries to third persons occasioned by the fault of his servant, and to bar the master where his servant contributes or concurs in the harm done the master. We are asked to take the doctrine one step further; to embrace the master through the imputation to the master of the negligence of the servant resulting in injury to himself, to the end of creating liability on the part of the master to an indemnitee under the terms of a contract.
But this additional step does not follow for here no tort against either a third person or the master is present, and the legal fiction of imputed negligence rests on such a tort. Negligence causing injury to one’s self will not suffice, for a tort rests on the breach of a legal duty owed another. To take this step would be adding a legal fiction to another legal fiction.
Furthermore, we are construing a contract and it would be drastic indeed to extend the doctrine in the suggested manner to impose liability not clearly spelled out in the contract, as it is not.

Id. at 428.

In Troxler v. Owens-Illinois, Inc., 717 F.2d 530 (11th Cir.1983), the indemnity agreement was very similar to the one in this case.

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Related

Martin & Pitz v. HUDSON CONST.
602 N.W.2d 805 (Supreme Court of Iowa, 1999)

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602 N.W.2d 805, 1999 Iowa Sup. LEXIS 272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pugh-v-prairie-construction-co-iowa-1999.