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FARMERS EXPORT CO. v. ENERGY TERMINALS

October 28, 1987

Farmers Export Co., Inc.
v.
Energy Terminals, Inc.



The opinion of the court was delivered by: HANNUM

 HANNUM, S.J.

 This matter was tried to the Court. The court now makes findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a). At issue is a crossclaim asserted by Farmers Export Company, Inc. (hereinafter "Farmers") against Energy Terminals, Inc. (hereinafter "Energy") and a crossclaim asserted by Energy against Farmers for indemnification or contribution.

 In the underlying suit, the plaintiffs, Mario and Eileen Caltabiano, brought suit against Energy, Farmers and the Consolidated Rail Corporation (hereinafter "Conrail"). The plaintiffs' claims brought against these defendants were settled for the sum of $ 216,000.00, with co-defendants Energy and Farmers each paying half. Each party before the Court - that is, Farmers and Energy, seek reimbursement of the amount it contributed towards the settlement with the plaintiffs. Neither Farmers nor Energy assert a crossclaim against Conrail.

 Energy contends that it is entitled to indemnification or contribution from Farmers because:

 (1) Farmers was a lessor in possession of the subject premises at the time of the accident.

 (2) Farmers negligently performed services gratuitously undertaken; and

 (3) Farmers failed to notify Mario Caltabiano of a dangerous condition which existed on the subject premises at the time it leased this property to Energy.

 Farmers argues that it is entitled to indemnification or contribution from Energy because:

 (1) Energy exercised control over the work performed by the plaintiff and did so negligently;

 (2) Farmers cannot be held liable for actions gratuitously undertaken because of the operation of the so-called "borrowed servant" doctrine;

 (3) Farmers' negligence, if any, was secondary or passive as opposed to Energy's primary or active negligence; and

 The Court, after evaluating the briefs, hearing testimony, and analyzing the exhibits, finds that Farmers and Energy are both tort feasors with respect to plaintiffs' injuries. The Court further finds that under Pennsylvania's Comparative Negligence Law, 42 Pa. C.S.A. § 7102(b), Energy is responsible for eighty percent of plaintiffs' damage award, and Farmers is responsible for twenty per cent.

 STANDARD OF REVIEW

 A district court has full discretion in evaluating the evidence as would the trier of fact in a jury trial. As will be discussed below, credibility of witnesses has played a significant role in resolving the issues of fact before the Court. The Court, after a brief recitation of the facts, will address the issues presented for decision.

 FACTS

 Conrail owned the premises located at 2870-2890 East Allegheny Avenue, Philadelphia, at the time of the accident which is the subject of this litigation. Farmers was a lessee of the premises during July, 1982, the month in which the accident occurred. During that month, Energy was the sublessee of the portion of the property on which the accident took place. The property in question was grain bin number 8, and had been assigned by Farmers to Energy as per their sublease agreement.

 Energy, through its project manager Alan Gibbs, contracted Highgate Steel (hereinafter "Highgate") to perform work in bin 8 for the purpose of converting it from a grain-handling apparatus to a coal-handling one. As recently as a month before the accident, Farmers possessed the bin according to its lease agreement with Conrail, and used it to hold corn. Plaintiff Mario Caltabiano was the Highgate employee performing the welding work in bin 8. During the conversion ...


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