Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 82-3796).
Hunter and Weis, Circuit Judges and Cohen, District Judge.*fn*
In this diversity case a jury awarded a verdict in favor of a subcontractor's employee who was injured while working on the defendant's premises. We conclude that the verdict is sustainable despite the defendant's assertion of trial error. We also determine that the trial judge properly ruled that, based on contractual provisions, defendant was entitled to indemnification from the general contractor which in turn was to be reimbursed by a subcontractor. Accordingly, we will affirm.
After a jury trial, plaintiff recovered a verdict against Minnesota Mining & Manufacturing Company (3M) for personal injuries received while working on the company's premises. 3M and the third-party defendants -- various contractors doing refurbishing at the company's plant -- submitted third-party indemnification claims to the court. After briefing but without any additional evidence, the court entered judgment in favor of 3M against Haverstick-Borthwick Company, the general contractor, and in its favor against its subcontractor, Dresher Mechanical Company. All parties have appealed various phases of the case.
3M contracted with Haverstick-Borthwick to perform certain construction work at 3M's plant in Bristol, Pennsylvania. Haverstick-Borthwick subcontracted part of the work to Dresher Mechanical, which in turn entered into a subcontract with the Wegmann Corporation.
Plaintiff, a sheet metal worker employed by Wegmann, was instructed to perform certain duct work at the 3M site. His assignment was a rush job, and his employer told him to use ladders and other equipment at the 3M plant. He took with him only his tool box.
At the worksite, plaintiff found an aluminum ladder leaning against a wall and used it to reach the ducts near the roof. As he began to burn away part of a metal duct, an employee of Haverstick-Borthwick, standing below, acted as a "fire watch."
Because his work was not completed, plaintiff returned the following day. He again used the aluminum ladder and as before, an employee of Haverstick-Borthwick acted as a fire watch. However while plaintiff was working, an employee of 3M came by and insisted that his company security guard act as fire watch. Plaintiff then descended the ladder and waited. When the 3M security guard arrived, plaintiff began to ascend the ladder. After he had climbed about 8 to 10 feet, the foot of the ladder slid out from under him, causing plaintiff to fall and severely injure his ankle.
Before using the ladder, plaintiff had noticed that it lacked nonskid safety feet. According to his testimony, he did not ask the security guard to steady the foot of the ladder because it was not customary to ask employees of the customer for assistance. A foreman for Haverstick-Borthwick testified that the ladder had been in the area for several months and that he had used it himself on two earlier occasions. The 3M supervisor of safety and security conceded that his security guards had authority to take an unsafe ladder out of service.
The jury found that 3M supplied the ladder, that the company was 62 percent negligent, and that the plaintiff's contributory negligence amounted to 38 percent.
3M had filed third-party complaints against Haverstick-Borthwick and Dresher seeking contribution and indemnity based on negligence, as well as indemnity based on provisions in the construction contracts. Before the trial began, 3M withdrew its claims against the contractor and subcontractor for contribution based on negligence. The parties agreed to submit the contractual indemnification issues to the court if plaintiff recovered a verdict against 3M. Although the issue of their liability was not to be submitted to the jury, counsel for Haverstick-Brothwick and Dresher were present during the trial and participated in the interrogation of witnesses.
After the jury returned its verdict in favor of the plaintiff, the court turned to the indemnity issues. Following briefing but without any further factual submissions, the district court ruled that the indemnification clauses in the contracts required Haverstick-Borthwick to indemnify 3M and in turn, Dresher to indemnify Haverstick-Borthwick.
The contract between 3M and Haverstick-Borthwick provided that
"contractor agrees to indemnify, defend and hold harmless Owner [3M] from and against any and all common law, statutory and other liability, loss, cost and expense, including court costs and legal fees, incurred by them because of any and all . . . injuries . . . referred to in this Article, whether or not based in whole or in part upon the active, passive, concurrent (but not sole) negligence of Owner. This indemnity shall be liberally construed in favor of indemnification."
The court concluded that the "sole negligence" of 3M exception was inapplicable for two reasons. First, the jury found that plaintiff was responsible in part for the accident, and his negligence under the terms of 3M's contract was chargeable to Haverstick-Borthwick. Second, the court found "on the evidence presented, the conclusion is inescapable that Haverstick-Borthwick and its various subcontractors (for whose conduct Haverstick-Borthwick was responsible, vis-a-vis 3M) were negligent in failing to inspect and assure themselves concerning the safety of the ladder used by plaintiff."
Although conceding that the comparative negligence statute provided room for argument, the court was not dissuaded from its ruling. The contractors contended that since 3M sought indemnity only for the amount assessed against it after deducting that attributable to the plaintiff's contributory fault, the "sole negligence" exception should apply. The district judge concluded that the "sweeping language of the indemnification clause indicated that the parties did not intend a different result [because] of comparative negligence principles."
The contract between Haverstick-Borthwick and Dresher incorporated by reference the agreement between 3M and Haverstick-Borthwick, stating, "The subcontractor agrees to be bound by the terms of the aforesaid principal contract, as far as applicable to this subcontract, and to assume toward the general contractor all the obligations and responsibilities that the general contractor, by those documents, assumes toward the owner." Dresher's contract further provides that
"The subcontractor shall carry insurance against liability for damages on account of injuries . . to all persons and injuries to the employees of the subcontractor for which the general contractor could be liable. . . whether such injury . . .result[s] . . by reason of provisions of the principal contract imposing or requiring the assumption of any such liability. . . . Subcontractor shall furnish certificates of the insurance carrier, of itself, ...