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decided: June 28, 1985.


Appeal form the Judgment entered December 9, 1981 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 4026 March 1977. Appeal from the Order of December 9, 1981 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 4026 March Term 1977.


John B. Day, Philadelphia, for appellant (at 00041), for appellee (at 00199).

John M. McNally, Jr., Philadelphia, for appellant (at 00199), for appellee (at 00041).

Spaeth, President Judge, and Cavanaugh, Wieand, Cirillo, Montemuro, Popovich and Hoffman, JJ.

Author: Hoffman

[ 344 Pa. Super. Page 193]

The issue on appeal is whether defendant City of Philadelphia (City) is entitled to judgment in the amount of $100,000 against additional defendant Jenkins Elevator and Machine Co. (Jenkins) because of the latter's failure to purchase a contractor's comprehensive liability insurance policy as required by the elevator service contract between them. In holding that the city is not so entitled, we affirm the order and judgment of the court below.

On December 5, 1980, a jury returned a verdict in favor of the plaintiff for $220,000 on her wrongful death action and $130,000 on her survival action against both defendants. The actions stemmed from a March 27, 1976 accident in which plaintiff's decedent fell to his death down an elevator shaft. Also on December 5th, the court awarded the City $100,000 as against Jenkins based on the clause quoted below. See N.T. December 5, 1980 at 570-74. After

[ 344 Pa. Super. Page 194]

    post-trial motions were filed and argued, however, the court reversed itself and held that the City was not entitled to the $100,000. See Lower Court Opinion at 26-27. Instead, the court found that the right of contribution existed between the City and Jenkins as joint tortfeasors. Id. at 27-28. On December 9, 1981, the total award of $350,000 in damages was entered in plaintiff's favor and also amended to include $39,794.52 in delay damages. Both the City and Jenkins appealed from that judgment, and a three-judge panel of this Court affirmed in a Memorandum Opinion filed October 21, 1983. DiPietro v. City of Philadelphia, (Pa. Superior Ct. 1983) (per curiam). Reargument before this Court en banc was granted solely on the issue presently before us.

The provision of the elevator service contract in question provides as follows:

Insurance -- Contractor shall obtain and maintain in full force and effect covering the performance of the work under this contract, a Contractor's comprehensive liability insurance policy. Said policy shall have minimum limits, unless otherwise specified, of $100,000/300,000 public liability and $25,000 property damage and such insurance shall be endorsed with a hold harmless clause in favor of the City of Philadelphia. Evidence of such insurance shall be furnished to the Department of Public Property before the work is begun.

(City's Exhibit 5 para. 3.11) (emphasis added). Both Jenkins and the City agreed that the interpretation of the clause was a question of law for the court to decide and that Jenkins did not, in fact, maintain a policy endorsed with a hold harmless clause in favor of the City. (N.T. December 8, 1980 at 582-83).

At first glance, the City would appear to be entitled to damages for Jenkins's failure to procure the stated policy.*fn1 "[O]ne who enters into an agreement to obtain insurance

[ 344 Pa. Super. Page 195]

    and neglects to fulfill his obligation becomes himself insurer and liable as such." Zortman v. Volk, 97 Pa. Superior Ct. 137, 140 (1929); accord Hagan Lumber Co. v. Duryea School District, 277 Pa. 345, 121 A. 107 (1923); see generally 18 G. Couch, Couch on Insurance 2d § 74:55 (rev. ed. 1983). Here, Jenkins was required to "obtain and maintain in full force and effect covering the performance of the work under this contract, a Contractor's comprehensive liability insurance policy." We note that these "policies are commonly issued to contractors insuring them against liability for damages or injuries occurring in connection with the performance of their contracts." 11 G. Couch, Couch on Insurance 2d § 44:344 at 520-21 (rev. ed. 1982) (footnote omitted); see also Hammermill Paper Co. v. Rust Engineering Co., 430 Pa. 365, 374, 243 A.2d 389, 394 (1968). "[B]roadly speaking, the so-called comprehensive provision of a [liability] policy covers loss or damage caused by any risk or peril other than those expressly excluded or excepted from coverage." Gehrlein Tire Co. v. American Employers Insurance Co., 243 F.Supp. 577, 581 (W.D.Pa. 1964), aff'd per curiam, 348 F.2d 918 (3d Cir. 1965). Here, then, such a policy would be primarily for Jenkins's benefit, namely, to insure Jenkins against liabilities or damages arising from its performance of its elevator service contract with the City. Because the policy was to be "endorsed with a hold harmless clause in favor of the" City, however, the City would be entitled to indemnity. Thus, from the City's viewpoint, the policy would provide a fund from which the City would recover for any secondary liability imposed against it.

However, we find that, even if Jenkins had taken out a contractor's comprehensive liability policy, the City would not be able to recover the $100,000, the minimum limit under the policy, it seeks. Under Pennsylvania law, indemnity is disallowed if the indemnitee is actively negligent. Lackowitz v. Socony Mobil Oil Co., 194 F.Supp. 146, 147-48

[ 344 Pa. Super. Page 196]

(E.D.Pa. 1961); Quinones v. Upper Moreland Township, 187 F.Supp 260, 267 (E.D.Pa. 1960), aff'd in part and vacated in part, 293 F.2d 237 (3d Cir. 1961); Pittsburgh Steel Co. v. Patterson-Emerson-Comstock, Inc., 404 Pa. 53, 62, 171 A.2d 185, 190 (1961) (indemnity disallowed where both parties were actively and primarily negligent). While it is not contrary to public policy for a party to contract for indemnification against its own torts, Westinghouse Electric Co. v. Murphy, Inc., 425 Pa. 166, 173 n. 5, 228 A.2d 656, 660 n. 5 (1967), the language in the indemnity provision must be clear and unequivocal, and the burden of proof falls on the party seeking such relief; the burden is even greater where such party drafted the agreement. Gimbel Brothers, Inc. v. William H. Vanderherchen, Inc., 468 F.2d 597, 599 (3d Cir. 1972); see also Brown v. Moore, 247 F.2d 711, 723 (3d Cir.), cert. denied, 355 U.S. 882, 78 S.Ct. 148, 2 L.Ed.2d 112 (1957); Bush v. Chicago and Northwestern Transportation Corp., 522 F.Supp. 585, 587 (E.D.Pa. 1981); Norfolk & Western Railway Co. v. Hardinger Transfer Co., Inc., 415 F.Supp. 507, 510 (W.D.Pa. 1976), remanded, 558 F.2d 1028 (3d Cir. 1977); Consolidation Coal Co., Inc. v. Liberty Mutual Insurance Co., 406 F.Supp. 1292, 1299 (W.D.Pa. 1976); Fisher v. United States, 299 F.Supp. 1, 23 (E.D.Pa. 1969), rev'd, 441 F.2d 1288 (3d Cir. 1971); Baut v. Pethick Construction Co., 262 F.Supp 350, 363 (M.D.Pa. 1966); Pittsburgh Steel Co. v. Patterson-Emerson-Comstock, Inc., supra, 404 Pa. at 57, 171 A.2d at 187; Tidewater Field Warehouses, Inc. v. Fred Whitaker Co., Inc., 370 Pa. 538, 540-41, 88 A.2d 796, 797 (1952); Perry v. Payne, 217 Pa. 252, 262, 66 A. 553, 557 (1907); Urban Redevelopment Authority v. Noralco Corp., 281 Pa. Superior Ct. 466, 471, 422 A.2d 563, 565-66 (1980); Potts v. Dow Chemical Co., 272 Pa. Superior Ct. 323, 326, 415 A.2d 1220, 1221 (1979). In the instant case, while we are not interpreting an indemnity provision as such, but rather a provision to procure insurance which is to be endorsed with a hold harmless clause, we nonetheless believe that

[ 344 Pa. Super. Page 197]

    these same principles are applicable because "to hold otherwise would be to put the indemnitor at the mercy of the indemnitee's negligent conduct . . . ." Quinones v. Township of Upper Moreland, supra at 266 (footnote omitted).

Here, the lower court found that the City was actively negligent. (Lower Court Opinion at 25-26). Because this finding is not before us for review, it follows that there must be clear and unequivocal language in the provision to procure insurance indicating that the city was to be protected from loss resulting from its own negligence. This is especially so because the specification was drawn by the City. The City concedes that paragraph 3.11 of the specification does not require Jenkins to indemnify the City for the latter's own torts. Cf. Westinghouse Electric Co. v. Murphy, Inc., supra (language specifically referred to the negligence of the alleged indemnitee). The City's reliance on Zortman, supra, and Hagan, supra, is misplaced because, in those cases, the party claiming recovery was to be an insured, not an indemnitee, under the insurance policies which were to be procured. In Zortman, the plaintiff failed to assign a fire insurance policy to the defendants, and the defendants were awarded damages (for fire loss to a dwelling) measured by appraisers, because "[i]f the contract with the insurance policy had been in force, the loss recoverable under the policy would have been determined by the appraisers, as they were appointed in accordance with the terms of the policy." Zortman v. Volk, supra at 141. In Hagan, the defendant failed to maintain fire insurance on a school which the plaintiff was awarded a bid to erect. The insurance was "to be made payable to the parties hereto as their interests may appear." Hagan Lumber Co. v. Duryea School District, supra 277 Pa. at 346, 121 A. at 107. The plaintiff was allowed to recover the damages sustained by it when the building burned down.

We do not agree with the lower court in the instant case that the language of the provision indicates that the contractor

[ 344 Pa. Super. Page 198]

    is liable for the City's active negligence, thereby rendering Jenkins an insurer, because the cost of the insurance was included in the contract price and thus was paid for by the City. See Lower Court Opinion at 27 n. 6, citing Gulf Oil Corp. v. Mobile Drilling Barge or Vessel, 441 F.Supp. 1 (E.D.La.), aff'd, 565 F.2d 958 (5th Cir. 1975).*fn2 In Gulf Oil, the claimant was named as an additional insured under the policy at issue, supra at 6, whereas, here, the City was to be only an indemnitee under the insurance policy.

The City argues, instead, that, even assuming that its negligence may have been responsible for the elevator accident, Jenkins's liability is in itself legally adequate to impose additional liability on it as the elevator owner. In support of this argument, the City cites Gilbert v. Korvette's, Inc., 457 Pa. 602, 327 A.2d 94 (1974), for the proposition that, if a jury enters a verdict against an elevator service contractor, it must necessarily enter one against an elevator owner who owes the public the "highest degree of care." Therefore, the City concludes, Jenkins is not being asked to insure the city against its own negligence, but rather to insure it for its liability "necessarily caused" by Jenkins's liability. This argument is flawed. While the City's proposition finds some support in Gilbert, see id., 457 Pa. at 624-25 n. 4, 327 A.2d at 106 n. 4 (JONES, C.J., concurring), the fact remains that here both the City and Jenkins were negligent. The Gilbert court itself noted that the harm suffered in that case, namely, foot injuries to a young boy, could have been caused by the negligence of the elevator contractor, the elevator owner, or both. Id., 457 Pa. at 615-16, 327 A.2d at 102. Indeed, the Court concluded that the jury's finding of joint negligence was supported by the evidence, but nonetheless awarded a new trial as to the contractor because of an erroneous jury charge. Id., 457

[ 344 Pa. Super. Page 199]

Page 199} Pa. at 617-18, 327 A.2d at 102-03. In the instant case, the City, as a joint tortfeasor, remains severally liable for the injuries to plaintiff's decedent regardless of whether a judgment has been recovered against Jenkins. See 42 Pa.C.S.A. § 8322. Thus, its liability does not stem from the negligence of Jenkins, but, rather, from its own negligent acts. It is, of course, well established that a joint tortfeasor cannot recover indemnity from those who helped to cause the injury. Builders Supply Co. v. McCabe, 366 Pa. 322, 328, 77 A.2d 368, 371 (1951); Lasprogata v. Qualls, 263 Pa. Superior Ct. 174, 178 n. 2, 397 A.2d 803, 805 n. 2 (1979).

Therefore, we cannot find that the City is entitled to the $100,000 by virtue of Jenkins's failure to procure the comprehensive policy when liability would not exist even if Jenkins had taken out such a policy.*fn3 Such a result would be novel indeed. The City could have protected itself by requiring that it be named as an additional insured on the policy or that the contractor save harmless the City from its own negligence or that of its agents. Accordingly, we affirm.




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