Loading...
HomeMy WebLinkAbout2004-2122 Civil MOSE ATHERTON, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. R.S. MOWERY AND SONS, INC. AND FOREMAN ARCHITECTS- ENGINEERS, INC., DEFENDANTS V. DAVID M . MAINES ASSOCIATES, INC.,: ADDITIONAL DEFENDANT : 04-2122 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF ADDITIONAL DEFENDANT. DAVID M. MAINES ASSOCIATES. INC.. TO THE JOINDER COMPLAINT BY DEFENDANT. FOREMAN ARCHITECTS-ENGINEERS. INC. BEFORE BAYLEY. J. AND GUIDO. J. OPINION AND ORDER OF COURT Bayley, J., January 5, 2006:-- Plaintiff, Mose Atherton, was an employee of David M. Maines Associates, Inc. On September 10, 2002, while working on the roof of a building at the Carlisle High School, plaintiff fell to the ground and sustained injury when part of the roof collapsed. Defendant, Foreman Architects-Engineers, Inc., joined David M. Maines Associates, Inc., as an additional defendant. Count I of the joinder complaint alleges that Maines is jointly and severally liable for any of plaintiff's injuries. Count II alleges that Maines is contractually obligated to indemnify Foreman against any of plaintiff's claims. Count III alleges that Maines breached its contractual obligation to insure Foreman. Foreman filed preliminary objections to the joinder complaint which were briefed and argued on 04-2122 CIVIL TERM November 23, 2005. Foreman concedes that Count I should be dismissed. Maines concedes that the issue raised in Count III cannot be resolved on a preliminary objection. The parties have briefed and argued the demurrer to Count II on the claim for indemnification. A demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. Baker v. Cambridge Chase, Inc., 725 A.2d 757 (Pa. Super. 1999). The Workers' Compensation Act, at 77 P.S. Section 481 (b), provides that an employer ". . . shall not be liable to a third party for. . . indemnity in any action at law... unless liability for such. . . indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action." In the present case, the contract between Maines and the Carlisle School District contains the following provisions: 3.18.1 To fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner, Construction Manager, Architect, Construction Manager and consultants, agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to, attorneys' fees and defense costs, arising out of or resulting from performance of the Work, but only to the extent caused in whole or in part by the acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts or omissions 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 3.18. The Contractor agrees to and does hereby assume on behalf of the Owner, Architect, and Construction -2- 04-2122 CIVIL TERM Manager the defense of any action at law or in equity which may be brought against such indemnities, upon their demand, the amount of any judgment that may be entered against such indemnities in any such action 3.18.2 In claims against any person or entity indemnified under this Paragraph 3.18 by an employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under this Paragraph 3.18 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or a Subcontractor under workers compensation acts, disability benefits acts or other employee benefit acts. (Emphasis added.) Relying on Bester v. Essex Crane Rental Corp., 422 Pa. Super. 178 (1993), Maines argues that this indemnification provision is unenforceable against it because "it does not explicitly provide that [it] will indemnify Foreman for Foreman's own negligence. In Bester, an en banc panel of the Superior Court of Pennsylvania stated: . . . in order for an employer to be held liable in indemnification for injuries to its own employees caused by the negligence of the indemnitee there must be an express provision for the contingency in the indemnification clause. *** . . . contracting parties must specifically use language which demonstrates that a named employer agrees to indemnify a named third party from liability for acts of that third party's own negligence which result in harm to the employees of the named employer. Absent this level of specificity the language employed in the contract of indemnification, the Workmen's Compensation Act precludes any liability on the part of the employer. (Footnote omitted.) The Court also stated: . . . that if the indemnification agreement is clear and includes indemnification in the event of either the indemnitee's or the employer's own negligence, its enforceability does not require that the employer, in -3- 04-2122 CIVIL TERM addition, expressly and in haec verba waive the immunity provided by S 481 (b) of the Workmen's Compensation Act. Bester was decided on January 8, 1993. On November 19, 1992, a panel of the Superior Court decided Hershey Foods Corporation v. General Electric Service Co., 422 Pa. Super. 143 (1993). Reargument was denied on January 29, 1993. In Hershey an action was brought seeking indemnification for the amount of damages it incurred as a result of an accident in its plant which caused the death of a GESCO employee. The operative indemnification language in the contract is identical to the indemnification provision in the case sub judice. The Superior Court concluded: . . . [t]he contract expressly provided that GESCO must indemnify Hershey under certain circumstances. The parties also agreed that "the indemnification obligation. . . shall not be limited in any way by any limitation on the amount and type of damages, compensation or benefits payable by or for [GESCO] under workmen's compensation acts, disability benefit acts or other employee benefits acts." The contract's indemnification clause clearly constitutes a waiver of the statutory immunity otherwise provided. . . and therefore, Hershey would be entitled to indemnification by GESCO . . . As in Hershey, the language in the subject indemnification provision sufficiently demonstrates that Maines agreed to indemnify Foreman from liability from any negligence of Foreman which resulted in harm to an employee of Maines. The decision in Bester does not warrant a different result. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of January, 2006, IT IS ORDERED: (1) The demurrer of additional defendant, David M. Maines, Associates, Inc., to -4- 04-2122 CIVIL TERM Count II in the joinder complaint of defendant, Foreman Architects-Engineers, Inc., IS DISMISSED. (2) The claim in Count I of the joinder complaint is dismissed.1 (3) The preliminary objection to Count III of the joinder complaint, IS DISMISSED. By the Court, Edgar B. Bayley, J. Karl J. Januzzi, Esquire For Plaintiff Donald M. Desseyn, Esquire For R. S. Mowery and Sons, Inc. Anthony T. Lucido, Esquire For David M. Maines Associates, Inc. Bruce D. Lombardo, Esquire For Foreman Architects-Engineers, Inc. :sal 1 The facts pled in Count I constitute a factual predicate for Count II. Those facts are not abrogated as a result of the dismissal of the claim in Count I. -5- MOSE ATHERTON, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. RS. MOWERY AND SONS, INC. AND FOREMAN ARCHITECTS- ENGINEERS, INC., DEFENDANTS V. DAVID M . MAINES ASSOCIATES, INC.,: ADDITIONAL DEFENDANT : 04-2122 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF ADDITIONAL DEFENDANT. DAVID M. MAINES ASSOCIATES. INC.. TO THE JOINDER COMPLAINT BY DEFENDANT. FOREMAN ARCHITECTS-ENGINEERS. INC. BEFORE BAYLEY. J. AND GUIDO. J. ORDER OF COURT AND NOW, this day of January, 2006, IT IS ORDERED: (1) The demurrer of additional defendant, David M. Maines, Associates, Inc., to Count II in the joinder complaint of defendant, Foreman Architects-Engineers, Inc., IS DISMISSED. (2) The claim in Count I of the joinder complaint is dismissed.2 (3) The preliminary objection to Count III of the joinder complaint, IS DISMISSED. 2 The facts pled in Count I constitute a factual predicate for Count II. Those facts are not abrogated as a result of the dismissal of the claim in Count I. 04-2122 CIVIL TERM Karl J. Januzzi, Esquire For Plaintiff Donald M. Desseyn, Esquire For R. S. Mowery and Sons, Inc. Anthony T. Lucido, Esquire For David M. Maines Associates, Inc. Bruce D. Lombardo, Esquire For Foreman Architects-Engineers, Inc. :sal By the Court, Edgar B. Bayley, J. -2-