Bernotas v. Super Fresh Food Markets, Inc.

DISSENTING OPINION

Justice SAYLOR.

The majority addresses in tandem what I regard as two distinct issues which, although subject to a number of overlapping considerations, I believe are best treated separately. *23The first and broader question is whether and to what extent this Court will recognize contractual, flow-through indemnity as a general proposition in the construction law setting. The second is whether the Court will apply the Perry/Ruzzi rule in relation to such claims, thus effectively obviating flow-through indemnification pertaining to circumstances involving negligent acts or omissions on the part of the party claiming a right to contractual indemnification.

Concerning the first of these issues, the competing points of view can be examined by way of reference to decisional law of other jurisdictions.1 On this question, although I tend toward the view that, at least in certain circumstances flow-through indemnification should be recognized in the construction law setting to give appropriate effect to the parties’ intentions and common practices,2 I do not believe that such issue needs be *24decided in this case, since, in addition to the flow-through obligations clause, the Acciavatti/Goldsmith subcontract contained an express indemnification provision. See RR at 175a (reflecting the subcontract provision to the effect that “SUBCONTRACTOR agrees to indemnify and hold harmless the CONTRACTOR and owner ... from and against all claims, loss, damage, liability or expense ... as may arise from the performance, lack of performance or improper performance of the Work”). In this situation, the presence of both an express indemnification obligation and one flowing from the prime contract creates an ambiguity concerning the scope of Goldsmith’s attendant responsibility, implicating the well-established principle that the ambiguity should be resolved against the drafter (here, Acciavatti).3 See Central Transp., Inc. v. Board of Assessment Appeals of Cambria County, 490 Pa. 486, 496, 417 A.2d 144, 149 (1980); accord Reed v. Long, 327 F.2d 611, 615 (6th Cir.1964) (“Why would this provision for indemnification be placed in the subcontract if it were intended that the broad reference to the General Conditions would include Section 30 (a very broad and inclusive provision for indemnification)[?]”). Thus, it is my position that the subcontractor generally should be held only to the more restricted indemnity obligation, here, that which is contained in the subcontract. Accord Reed, 327 F.2d at 615; cf. Valerio v. R & R Constr. Co., 20 Ill.App.3d 48, 312 N.E.2d 713, 716 (1974). See generally 3 Bruner & O-Connor Constr. Law § 10:20. As noted, application of such analysis would obviate any need to address the general availability of flow-through indemnity in the context of this case.

*25As to the actual terms of the Acciavatti/Goldsmith subcontract’s express indemnification provision, I disagree with the majority that there is an ambiguity that requires a reading affording indemnification only in the event that damage results solely from the performance of the subcontractor’s work. See Majority Opinion, op. at 483. To the contrary, the clause contains no such exclusivity language. Indeed, it seems to me that such an interpretation renders the provision largely self-defeating, as accidents can frequently be viewed as resulting from a confluence of concurrent causes (to include, for example, inattention on the part of the injured plaintiff in the underlying action). While I acknowledge the correctness of the majority’s observation that the release language preceding the relevant indemnification proviso is considerably broader in scope, see Majority Opinion, op. at 483,1 do not agree that this justifies a restriction on indemnity that is inconsistent with the plain language of the agreement.

The Acciavatti/Goldsmith subcontract does, however, lack a provision which would allow for indemnification relative to acts of negligence on the part of the indemnitee (Acciavatti), and therefore, the Perry/Ruzzi principle applies to foreclose indemnification in such instance. See Ruzzi v. Butler Petroleum Co., 527 Pa. 1, 7, 588 A.2d 1, 4 (1991). The trial court’s finding of concurrent negligence on Acciavatti’s part by virtue of its failure to maintain a safe work site would therefore seem to insulate Goldsmith from indemnification liability.

My only reservation about reversing the Superior Court’s decision on this ground stems from the vagueness of the evidentiary presentation that was made before the trial court (perhaps by no fault of the parties, but rather, by virtue of uncertainties surrounding the facts), as well as the highly generalized nature of the court’s resultant findings. In this regard, I would note that application of the Perry/Ruzzi principle is justified only in instances involving negligent acts or omissions on the part of the indemnitee that would give rise to primary liability on its part. See Urban Redev. Auth. v. Noralco Corp., 281 Pa.Super. 466, 477-78, 422 A.2d 563, 569 (1980) (holding that contractual indemnity was available rela*26tive to an indemnitee’s secondary liability, despite there being no express indemnification provision addressing indemnitee negligence).4 This Court’s recent decision absolving contractors of workplace safety obligations delegated to subcontractors, see Leonard v. PennDOT, 565 Pa. 101, 108-09, 771 A.2d 1238, 1242 (2001), which was issued in the same time frame as the trial court’s decision but was not acknowledged by it, also seems to me to be potentially implicated by the facts.

In these regards, Goldsmith’s brief contains a concession that its subcontract with Acciavatti delegated to it the responsibility to maintain a safe work place relative to the electrical work. See Brief of Appellant at 11. Facially, it appears that the plaintiffs accident in this case may have resulted from her contact with an electrical conduit pipe that was left protruding from the floor after demolition and removal work had been completed in the construction project entailing relocation of supermarket offices.5 Leonard would seem to foreclose a *27finding of concurrent liability within the scope of such delegation, see Leonard, 565 Pa. at 108-09, 771 A.2d at 1242, thus rendering questionable the trial court’s determination that both Acciavatti and Goldsmith were at fault,6 at least in the absence of more detailed factual findings.7

I would therefore vacate the Superior Court’s order and remand to the common pleas court for specific findings concerning the cause of the accident and responsibility for workplace safety and/or debris removal relative to such cause. If the court were to determine that the evidence is insufficient to support concrete findings in these regards, I would direct that it enter judgment in favor of Goldsmith, as the burden of proof was at all times upon Acciavatti, the party seeking indemnification. See McClure, 401 Pa.Super. at 231, 585 A.2d at 22.

. Compare Whittle v. Pagani Bros Constr. Co., 383 Mass. 796, 422 N.E.2d 779, 781 (1981) (holding, under a fair-import construction, that a subcontract flow-through clause was sufficient to impose on the subcontractor an obligation to indemnify the contractor to the same extent that the prime contract required the contractor to indemnify the owner); Binswanger Glass Co. v. Beers Constr. Co., 141 Ga.App. 715, 234 S.E.2d 363, 365 (1977) (same, from a strict construction perspective), with Howe v. Lever Bros. Co., 851 S.W.2d 769, 774 (Mo.Ct.App.1993) (rejecting flow-through indemnity in the setting of a subcontract, on the ground that the contractual flow-through provision applied only to the scope of the work). See generally Dwight G. Conger, Michael T. Lynch and Mary Catherine Rentz, Construction Accident Litigation § 6:32 (2004) (synopsizing the decisional law of various jurisdictions as follows: "[Tjthe courts are willing to recognize the efficacy of step-over clauses and grant indemnification based upon indemnity provisions in the incorporated documents so long as the step-over clause clearly and unambiguously incorporates the extraneous document without limiting its application to some aspect of the contractual relationship which would normally exclude considerations of indemnity, i.e., ‘material to be supplied and work to be performed,' and the like.”); 3 Bruner & OConnor Constr. Law § 10:20 (2004) ("Because it is common for construction contracts to contain incorporation-by-reference or flow-down clauses, a party to an agreement containing such a clause may find itself obligated to provide indemnity to the other contracting party to the same extent that that party must indemnify another under the terms of the prime contract.”).

. One set of commentators framed such considerations along the following lines:

It is in the nature of the principal construction contract that the entire body of work to be performed on the premises is described *24therein. By entering into the general contract, the owner has communicated to the general contractor not only what he wants done on his property, but how and in what manner his ownership interests are to be protected by the general contractor. When the general contractor in turn hires his subcontractors, there is really no necessity to 'reinvent the wheel.' Many general contractors utilize form contracts with space for incorporating the general contract by reference. In this way, the general contractor intends that the general contract actually be an integral part of the subcontract.

Conger, et al., Construction Accident Litigation § 6:32.

. The Acciavatti/Goldsmith subcontract appears on Acciavatti letterhead. See RR at 173a.

. Notably, the circumstances underlying both the Perry and Ruzzi decisions involved primary liability on the part of the indemnitee as a sole or joint tortfeasor. See Ruzzi, 527 Pa. at 6, 588 A.2d at 3 (involving an effort to obtain indemnification by a party that was found to have been 84 percent negligent in a jury trial); Perry v. Payne, 217 Pa. 252, 255, 66 A. 553, 554 (1907) (involving negligence on the part of the indemnitee's employee in lowering an elevator on a painter, causing his death). Indeed, as secondary liability is the basis for common law indemnification theory, see Builders Supply Co. v. McCabe, 366 Pa. 322, 328, 77 A.2d 368, 371 (1951), it seems to me that the policy considerations at work in Perry/Ruzzi simply are not relevant in relation to contractual indemnification claims asserted by persons subject only to secondary liability on the underlying claim. See generally 42 C.J.S. IndeiVinity § 15 (2004) ("Where an indemnity provision does not specifically address what effect the indemnitee's negligence will have on the indemnitor’s obligation, it is a general indemnity agreement, and the indemnitee is not entitled to indemnification for loss resulting from its own active negligence, but only for its own passive negligence.”). While use of the terms "active” versus "passive” negligence has been criticized in this setting based on their vagueness, see, e.g. Urban Redev., 281 Pa.Super. at 479-83, 422 A.2d at 570-72 (Spaeth, J., concurring); see also City of Pittsburgh v. American Asbestos Control Co., 157 Pa. Cmwlth. 235, 240, 629 A.2d 265, 268 (1993), the primary versus secondary liability distinction remains a meaningful one.

. The majority is correct in noting that the trial court did not specify the cause of the accident. It is noteworthy, however, that the record contains no evidence of any specific potential cause related to workplace safety other than the conduit pipe, and the common pleas court’s *27liability finding must necessarily subsume some assessment of causation. See generally McClure v. Deerland Corp., 401 Pa.Super. 226, 231, 585 A.2d 19, 22 (1991) (observing that a party seeking contractual indemnification must establish, inter alia, the validity of the underlying cause and the reasonableness of the settlement). Thus, it appears to me that the court may have attributed the injury to the conduit pipe (it is interesting to note that the only specific evidence to the effect that the plaintiff tripped on the pipe was admitted over an at least facially legitimate hearsay objection lodged by Goldsmith, see N.T., Mar. 26, 2001, at 129-34; the issue of the validity of such objection, however, has not been presented to this Court at this time), and the uncertainty in this regard could be clarified via a remand.

. Were the matter to be remanded, it is possible that Acciavatti’s participation in the settlement of the underlying cause could be deemed reasonable on a secondary liability theory in spite of Leonard, since, although Leonard predated the common pleas court’s decision on indemnification, the law in this regard remained uncertain at the time of the settlement.

. There is also some suggestion in the record that the conduit pipe may have been a remnant from prior construction that was not within the scope of Goldsmith’s work, see N.T., March 26, 2001, at 118-20 (testimony from a Goldsmith supervisor suggesting that Goldsmith's work was directed to overhead wiring, and not wiring from the floor area), which, if found as a fact, would render it outside the scope of the acknowledged delegation here.