J-A09035-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BURLINGTON COAT FACTORY OF IN THE SUPERIOR COURT OF
PENNSYLVANIA, LLC and BURLINGTON PENNSYLVANIA
COAT FACTORY WAREHOUSE
CORPORATION,
Appellant
v.
GRACE CONSTRUCTION MANAGEMENT
COMPANY, LLC
Appellee Nos. 2036 EDA 2013
Appeal from the Order Entered June 14, 2013
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): October Term, 2011, No. 001844
BEFORE: BOWES, J., OTT, J., AND JENKINS, J.
MEMORANDUM BY: JENKINS, J. FILED SEPTEMBER 15, 2014
This is an appeal by Burlington Coat Factory of Pennsylvania, LLC and
order granting summary judgment to Grace Construction Management
indemnity. We affirm.
Burlington Coat Factory Warehouse Corporation is the parent
corporation of Burlington Coat Factory of Pennsylvania, LLC, which operates
a store in Philadelphia, Pennsylvania. Grace, a general contractor, entered
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the store. The parties labeled the Agreement as between Grace and
ade name.
-
sub-contractors, suffered injuries when at the store when the doors to a
freight elevator closed and struck him in the back. Eddis and his wife filed a
personal injury action against BCF, Schindler Elevator Corporation
demanded a defense and indemnification from Grace pursuant to the
Agreement, but Grace rejected the demand. In October 2011, BCF filed a
separate action against Grace alleging breach of contract as well as counts
the accident, or, in the alternative, the Agreement required Grace to
In October 2012, the Eddises settled their action for $70,000, with BCF
contributing $35,000 and Schindler contributing $35,000. There was no
admission of liability in the settlement agreement.
BCF and Grace filed cross-motions for summary judgment. On June
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require Grace to indemnify B
timely appeal1.
BCF raises the following issues on appeal:
1. Did the lower court err in granting summary
judgment to [Grace] on a finding that only [BCF]
could be liable for an injury in its elevator when
there was evidence on which a jury could find that:
a) the elevator did not malfunction; and b) whether
it malfunctioned or not, the injury was caused, at
least in part, by the negligence of [Grace] or those
for whose acts [Grace] undertook a duty to
indemnify [BCF]?
2. Did the lower court err in granting summary
judgment to [Grace] on a conclusion of law that the
construction contract did not require [Grace] to
indemnify [BCF] for its own negligence when a
general indemnification provision in the General
Conditions of the contract benefitting numerous
parties limited the indemnification duty to "the
extent caused by" negligence of [Grace] or anyone
working under it, but a more specific provision in the
contract, relating only to [BCF], provided for an
unlimited duty to indemnify?
3. Did the lower court err in granting summary
judgment to [Grace] upon a conclusion of law [that
Grace] satisfied its obligation to procure insurance
naming [BCF] as an additional insured, when the
insurance procured was not primary and,
burden of buying insurance for a construction project
was defeated?
BCF Opening Brief, Statement Of Questions Involved. Stated more
succinctly, BCF contends that summary judgment was improper because (1)
1
The lower court did not order BCF to file a statement of matters
complained of on appeal.
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BCF has a valid cause of action against Grace for contribution, (2) Grace is
required to indemnify BCF under the Agreement, and (3) Grace is required
to obtain insurance that names BCF as an additional insured.
ainst Grace for contribution.
Contribution is available against any defendant, even one the original
plaintiff did not sue. Burch v. Sears, Roebuck & Co., 467 A.2d 615, 622
(Pa.Super.1983)
original proceeding ... via joinder of the additional defendants, see Pa.R.C.P.
2252
an original defendant who has previously been held liable to the original
Bianculli v. Turner Const. Co., 640 A.2d 461, 465
(Pa.Super.1994), appeal denied, 651 A.2d 541 (1994). Where the
defendants in a contribution action are not defendants in the original case,
plaintiff and prove that the new defendant was a joint tortfeasor in that his
tortious c Mattia v. Sears, Roebuck
& Co., 531 A.2d 789, 791 (1987), appeal denied, 519 Pa. 660 (1988).
BCF contends, and Grace does not dispute, that Eddis was performing
work for Grace when he suffered his injuries. BCF asserts that Grace
negligently trained and supervised Eddis with respect to his use of the
ce that
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harm. We conclude that the trial court properly entered summary judgment
failure to prove causation against Grace.
In an action in negligence, the plaintiff must prove four elements: (1)
a duty or obligation recognized by law; (2) breach of the duty; (3) causal
connection between the actor's breach of the duty and the resulting injury;
and (4) actual loss or damage suffered by complainant. Merlini ex rel.
Merlini v. Gallitzin Water Authority, 980 A.2d 502, 506 (Pa.2009). The
impose liability upon anyone as there remains to be proved the link of
Lux
v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286 (Pa.Super.2005)
uct must be
Hamil v.
Bashline
art denoting the point at which legal responsibility attaches for the harm to
another arising out of some act of defendant; and it may be established by
evidence that the defendant's negligent act or failure to act was a
Id. Proximate
ulting in plaintiff's
injury is so remote as to appear highly extraordinary that the conduct could
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Lux, supra, 887 A.2d at 1286-87 (citation
omitted).
Proximate cause is a question of law that the court must determine
before placing the issue of actual cause before the jury. Id. A
negligence, if any, was so remote that as a matter of law, [the actor] cannot
be held legally responsible for [the] harm which sub Id.
Therefore, the court must determine whether the injury would have been
foreseen by an ordinary person as the natural and probable outcome of the
act complained of. Id.
BCF argues that Eddis operated the freight elevator negligently by
elevator. BCF also argues that Grace was negligent for failing to train Eddis
how to operate the elevator and for failing to follow its own safety standards
in the use of
prohibition on using the elevator unassisted, when viewed in light of
evidence that Grace generally disregarded its own safety standards, were all
factors that substantially contributed
exper
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2
. R.R.
531-547a. Ross did not at Id.
Expert testimony is necessary when the subject matter of a case is
beyond the ken of the average layperson. Vazquez v. CHS Professional
Practice, P.C., 39 A.3d 395, 398-99 (Pa.Super.2012). In our view, the
question
requires expert testimony. At least four parties BCF, Schindler, Grace and
Eddis himself
making it difficult to decide which actor(s) caused the accident without the
testimony of an accident reconstructionist and/or expert on the use of
2
Mr. Ross concluded:
Based on the results of my investigation and within a reasonable
degree of engineering and scientific certainty, I have concluded Mr.
Eddis's injuries reported at the subject property were caused by BCF's
failure to properly maintain and repair the subject elevator, gate and
associated components. My investigation revealed BCF repeatedly
ignored requests to repair the gate and doors of the subject elevator,
creating an unsafe, unreliable and hazardous condition that resulted in
Mr. Eddis injuries. I have also concluded Schindler failed to properly
repair the subject elevator, specifically the alarm bell prior to the
incident resulting in Mr. Eddis's injuries.
It is evident the incident was caused by a failure of the safety shoe
and alarm bell of the subject elevator. . .on the date of the incident or
by the gate completely derailing from its track, resulting in the alarm
bell not sounding. These conditions and the lack of a proximity edge
installed on the subject elevator resulted in Mr. Eddis's injuries on the
date of the incident.
R.R. 547-48.
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freight elevators. Moreover, Eddis submitted a detailed expert report
attributing the cause of the accident to BCF and Schindler while remaining
silent about Grace. Given the number of potentially blameworthy actors and
-crafted expert report that points away from Grace, it was
incumbent upon BCF to submit an expert report establishing a causal nexus
step dooms its action for contribution.
A recent decision by this Court, MIIX Insurance Co. v. Epstein
( ), 937 A.2d 469 (Pa.Super.2009), is instructive. There, a hospital
that was found liable in a medical malpractice action brought an action for
contribution against two hospital residents who were not parties to the
original action3. The trial court granted summary judgment to the residents
in the contribution action because the hospital failed to produce expert
reports establishing their negligence. We affirmed, reasoning that expert
the residents. Id. at 474 n. 6. Unlike MIIX, this case does not involve
professional negligence, but we still think its rationale applies to accident
scenarios such as the case at bar. MIIX teaches that when the underlying
action involves intricate facts under which multiple persons may share
liability, and a party defendant in the underlying action seeks contribution
3
The verdict slip in the original action inquired whether the residents were
negligent, and the jury answered these questions in the affirmative. But
because the residents were not parties in the original actio
responses were not binding on the residents. Id., 937 A.2d at 473-74.
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from a non-party, it is important, and often essential, for the party
defendant to obtain an expert report that proves the non-
this case, BCF ignored lesson by failing to submit an expert report
esta
matter of law.
In its second issue on appeal, BCF argues that the Agreement between
We disagree. There are two conflicting indemnity provisions in the
Agreement -- and since BCF drafted the Agreement, the more restrictive
provision applies, under which BCF cannot obtain indemnification.
to make good a loss which another has incurred or may incur by acting at
the request of the former, or for Potts v. Dow
Chemical Co.,
agreements are to be narrowly interpreted in light of the parties' intentions
Consolidated Rail Corp. v.
Delaware River Port Auth., 880 A.2d 628, 632 (Pa.Super.2005)
interpreting the scope of an indemnification clause, the court must consider
Widmer Engineering, Inc. v. Dufalla, 837 A.2d 459, 472 (Pa.Super.2003)
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(citations and quotation marks omitted). To establish the right to
indemnification, the alleged indemnitee (herein BCF) must establish scope of
the indemnification agreement; the nature of the underlying claim; its
coverage by the agreement; the reasonableness of the alleged expenses;
and, where the underlying action is settled rather than resolved by payment
of judgment, the validity of the underlying claim and the reasonableness of
the settlement. McClure v. Deerland Corp., 585 A.2d 19, 22
(Pa.Super.1991).
A party cannot obtain indemnification for its own negligence unless the
contract clearly and unequivocally provides for such indemnification. Ruzzi
v. Butler Petroleum Co., 588 A.2d 1, 7 (Pa.1991); Perry v. Payne, 66 A.
553 (Pa.1907). As our Supreme Court
language is clear and unambiguous ... we must opt for the interpretation
that does not shoulder [subcontractor] with the fiscal responsibility for
Greer v. City of Phila., et al.,
795 A.2d 376, 380 (Pa.2002). Thus, where an agreement includes multiple
contradictory indemnity provisions drafted by the same person, we construe
the agreement against the drafter and enforce the narrower provision.
Chester Upland School District v. Edward J. Meloney, Inc., 901 A.2d
1055, 1061-62 (Pa.Super.2006).
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The record reflects that on August 28, 2009, BCF drafted the
Agreement and mailed it to Grace. R.R. 418. The Agreement includes two
indemnity provisions. The first (Provision I) states:
To the fullest extent permitted by law, the
Contractor (Grace) shall indemnify and hold
harmless BCF, the Architect, the Engineer, the
any of them from and against claims, damages,
losses and expenses, including but not limited to
performance of the Work4, provided that such claim,
damage, loss or expense is attributable to bodily
injury, sickness, disease or death, or to injury to or
destruction of tangible property (other than the Work
itself) including loss of use resulting therefrom, but
only to the extent caused in whole 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 expenses is caused in part by
a party indemnified hereunder.
R.R. 425-26 [emphasis added]. The second provision (Provision II) states:
[Grace] releases BCF and assumes entire
responsibility and liability for any and all claims
and/or damages or any nature or character
whatsoever arising under the Contract Documents,
by operation of law, or in any other manner with
respect to work covered by this CONTRACT and
agrees to indemnify and save BCF harmless from
and against all claims, demands, liabilities, interest,
of whatsoever kind or nature, whether for property
4
by the Contract Documents, and includes all other labor, materials,
a lengthy list of tasks that Grace is
obligated to perform.
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damage, personal injury or bodily injury (including
death) to any and all persons, whether employees of
[Grace], BCF or others, or otherwise, caused or
occasioned thereby, resulting therefrom, arising out
of or therefrom, or occurring in connection
therewith...
R.R. 432 [emphasis added].
The first and narrower indemnity provision does not obligate Grace to
on our reasoning in Chester Upland School District, supra, we find that
the first and narrower indemnity provision precludes BCF from obtaining
indemnification. In that decision, the School District contracted with various
parties, among them Contractor and Architect, for the purchase and
installation of a new chiller and cooling tower for the HVAC system at
Chester High School. The chiller malfunctioned, and the School District filed
an action against, among other parties, Contractor and Architect. Architect
filed a cross-claim against Contractor demanding indemnification for costs
and attorney fees incurred in defending itself
claims.
Architect drafted two conflicting indemnification provisions in the
contractual documents. The first, more restrictive provision stated:
To the fullest extent permitted by law, the
Contractor shall indemnify and hold harmless the
Owner, Architect, Architect's consultants, and agents
and employees of any of them from and against
claims, damages, losses and expenses, including but
not limited to attorneys' fees, arising out of or
resulting from performance of the Work, provided
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that such claim, damage, loss or expense is
attributable to bodily injury, sickness, disease or
death, or to injury to or destruction of tangible
property (other than the Work itself) including loss of
use resulting therefrom, but only to the extent
caused in whole or in part by negligent acts or
omissions of the Contractor5, 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. Such obligation shall not be construed to
negate, abridge, or reduce other rights or obligations
of indemnity which would otherwise exist as to a
party or person described in this Paragraph...
The obligations of the Contractor under th[is]
Paragraph. . . shall not extend to the liability of the
Architect, the Architect's consultants, and agents and
employees of any of them arising out of (1) the
preparation or approval of maps, drawings, opinions,
reports, surveys, Change Orders, designs or
specifications, or (2) the giving of or the failure to
give direction or instructions by the Architect, the
Architect's consultants, and agents and employees of
any of them provided such giving or failure to give is
the primary cause of the injury or damage.
Id., 901 A.2d at 1059-60 (emphasis in original). Under this provision,
Contractor was only liable if the claim arose from either its negligence or
omission, in whole or in part, or from that of its subcontractor. Moreover,
this provision specifically limited Contractor's liability to Architect so as not
to include claims against Architect arising from its performance of various
duties.
5
Interestingly, this italicized language is identical to the crucial italicized
language in the Provision I of the Agreement. See Provision I, page 10,
supra.
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The second (and broader) provision stated:
The Contractor shall indemnify and save harmless
the Owner, the Board, its members and officers, the
Architect, his assistants, and all others who may act
for the Board or the Owner from all suits and actions
of every kind, nature and description brought by
anyone whatsoever against them or any of them in
any manner connected with the Contract here
proposed or the work thereunder; provided that
nothing herein stated shall be construed to preclude
the Contractor from maintaining an action at law for
money which may be due him under the Contract.
Id. at 1060 (emphasis in original). Under this provision, Contractor was
liable for all claims brought against Architect in connection with the contract.
d
Id.
agreement against Architect and concluded that the first, more restrictive
provision applied, Id. at 1061-62, and held that Architect could not obtain
indemnification under this provision.
Chester Upland School District
decision against BCF in the case at bar. The record demonstrates that BCF
drafted both indemnity provisions in the Agreement with Grace. Grace
asserted in its summary judgment papers below that BCF drafted the
Agreement, R.R. 584, and BCF did not deny this point. BCF mailed the
Agreement with both provisions to Grace, R.R. 418, and there is no evidence
that Grace amended either provision before signing the Agreement.
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Moreover, the indemnity provisions are contradictory. Provision I requires
Grace to indemnify BCF only to the extent Grace is negligent; Provision II
requires Grace to indemnify BCF for BC
Grace is negligent. Chester Upland School District requires us to resolve
this ambiguity by construing the Agreement against the drafter, BCF, and
enforcing the more restrictive indemnity provision, Provision I. Under this
Not only does our interpretation of the Agreement follow Chester
Upland School District
directive to deny indemnification to a party for its own negligence unless the
agreement clearly and unequivocally provides this remedy. The Supreme
Court stated in Greer that an indemnification agreement is not clear and
unambiguous unless
indemnitor (Grace) intends to indemnify the indemnitee (BCF) for the
Id., 795 A.2d at 380. Instead of putting the
matter beyond doubt, the presence of conflicting indemnity provisions in the
Agreement creates doubt as to whether Grace intends to indemnify BCF for
narrowly, we are unwilling to award indemnification under these
circumstances.
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its duty to obtain insurance naming BCF as an additional insured. The
question of whether Grace obtained such insurance would only become
relevant if Grace had a duty to pay contribution or indemnity to BCF. For
the reasons provided above, no such duty exists6.
Order affirmed.
Judge Ott joins in memorandum.
Judge Bowes files concurring and dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2014
6
Since our decision rests on the grounds discussed above, we will not
because it voluntarily paid the settlement to Eddis and (2) BCF has no
Agreement with Grace instead of Burlington Coat Factory of Pennsylvania,
LLC and Burlington Coat Factory Warehouse Corporation.
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