that the truck went out of control and struck a tree. As an employee he would be barred from suit against the Great Atlantic and Pacific Tea Company because he is covered by the Pennsylvania Workmen's Compensation Act. He brought suit against General Motors Corporation, the manufacturer, and against Avis Rent A Car Systems, Inc., the owner-lessor of the truck, alleging that a defective condition in the truck was the cause of the accident. The truck in question was leased from Avis to A & P under a written lease defining the obligations of the parties as to use, care and maintenance of the vehicles.
Avis brought a third-party complaint against the A & P. Under paragraph 5 of the Third-Party Complaint Avis alleges that A & P is under an obligation to indemnify, hold harmless and provide a defense for this type of claim.
Third-party defendant A & P has moved for Partial Summary Judgment solely on the question of whether there is any contractual obligation of A & P to indemnify, save harmless and provide a defense for Avis on the type of claim presented here.
By Answers to Interrogatories Avis has admitted that its sole basis for a contractual obligation to indemnify, save harmless, and defend Avis rests upon Sec. IV(C) of the lease between Avis and A & P.
A great deal of effort has been expended by Avis to establish that summary judgment is not applicable in this situation because there are genuine issues of material fact on the right of indemnity. This is not disputed. There are factual and legal issues present on the question of Avis' right to indemnity as a matter of law, including the related questions of the respective control of the parties over the vehicle, the alleged negligence of the parties, and possibly the intent of the parties as to the relevant transactions between them.
But we are considering the issue raised within the terms of Fed. R. of Civ. P. 56(d) Case Not Fully Adjudicated on Motion, which provides for a determination of material facts which exist without controversy and the determination of the effect of these facts as a matter of law in the further conduct of the case.
A & P in its motion raises the sole question of whether the terms of Sec. IV(C) of the lease require it to give indemnity, to save harmless, or provide a defense as a matter of contractual obligation to Avis.
The applicable provision of the lease agreement is as follows:
IV(c) "That the Automobile Public Liability and Property Damage Insurance coverages shall be furnished and maintained in full force and effect throughout the term of this Agreement on each VEHICLE by the CUSTOMER at the CUSTOMER'S sole cost and expense. The insurance policy or policies providing the foregoing coverage shall be written by a reputable insurance company or companies authorized to transact business in all of the states in which the VEHICLES will be used or operated; shall protect the interest of AVIS, and the CUSTOMER, including their authorized drivers, with respect to their liability for bodily injuries to or the death of third persons and damage to property (including the loss of use thereof) of third persons resulting from the ownership, maintenance or use of the VEHICLES, including loading and unloading of said VEHICLES; and shall provide that the insurance company or companies issuing such policy or policies shall notify both AVIS and the CUSTOMER of any cancellation thereof at least ten (10) days prior thereto. Limits of such policy or policies shall be $100,000 per bodily injury (including death resulting therefrom) to any one person subject to $300,000 per accident and $100,000 for the injury to or destruction of property per accident. The party thus furnishing the foregoing coverages shall furnish the other party with certificates of insurance or other evidence of the said insurance coverages. In the event that CUSTOMER elects CUSTOMER agrees that it will protect AVIS from any and all liability arising from the operation, maintenance and use of the VEHICLES covered by the terms of this agreement in like manner and to the same extent as would the insurance coverage described in this paragraph."