United States District Court, E.D. Pennsylvania
July 27, 2004.
EXXONMOBIL OIL CORPORATION,
WILLIAM J. LUCCHESI, WJL MANAGEMENT ENTERPRISES, INC. AND STEVEN O'MARA.
The opinion of the court was delivered by: HERBERT HUTTON, District Judge
MEMORANDUM AND ORDER
Presently before the Court are Plaintiff ExxonMobil Oil Corp.'s
Motion for Partial Summary Judgment against Defendant Steven
O'Mara (Docket No. 17), Defendant Steven O'Mara's response
thereto (Docket No. 23), Defendants WJL Management Enterprises'
and William J. Lucchesi's Motion for Partial Summary Judgment as
to Defendant Steven O'Mara's Cross-claim (Docket Nos. 18, 19 &
20), Defendant Steven O'Mara's response (Docket No. 22), and WJL
Management Enterprises' and William J. Lucchesi's reply thereto
(Docket No. 24).
Plaintiff ExxonMobil Oil Corporation ("ExxonMobil") seeks
contribution or indemnification from Defendants William J.
Lucchesi ("Lucchesi"), WJL Management Enterprises, Inc.
(individually and collectively with Lucchesi as "WJL"), and
Steven O'Mara ("O'Mara") for a settlement it entered into on
November 18, 2002, to resolve a slip and fall case.
The underlying slip and fall action was commenced by Bernard and Doris Nusrein in the Philadelphia County Court of Common
Pleas. Mr. Nusrein alleged that on February 18, 2000 he sustained
injuries after he slipped on a patch of ice on a walkway near the
office of a Mobil service station on City Avenue in Philadelphia.
The Nusreins filed suit against Mobil Oil Corporation ("Mobil")
on November 16, 2000, alleging that Mobil negligently maintained
the premises, causing his fall and subsequent injuries. On
February 14, 2001, the Nusreins amended the complaint to include
ExxonMobil as a defendant after the two oil companies merged. On
November 5, 2001, the Nusreins filed a second amended complaint
and added Lucchesi and WJL as defendants because they leased the
service station. In August 2002, WJL attempted to add O'Mara as a
defendant, alleging that WJL sold its interest in the station to
O'Mara on February 1, 2000, and that O'Mara was the sole operator
and possessor of the service station at the time of Mr. Nusrein's
fall on February 18, 2000. The Philadelphia Court of Common Pleas
denied WJL's motion, refusing to add O'Mara as a defendant in the
slip and fall case.
On November 18, 2002, ExxonMobil settled the Nusrein's action
for $175,000. The Nusreins signed a Joint Tortfeasor Release in
which they released only their claims against Mobil and
ExxonMobil. Mobil and ExxonMobil admitted liability as joint
tortfeasors. The Nusreins did not release their claims against
WJL or O'Mara.
ExxonMobil filed the instant action on March 17, 2003 pleading eight counts against WJL and O'Mara. In Counts I and II,
ExxonMobil seeks contractual indemnification, and indemnification
or contribution based on negligence against WJL for their alleged
failure to properly maintain and repair the service station. In
Counts III through VII, ExxonMobil alleges WJL and Lucchesi
breached various provisions of the Franchise Agreement and the
Key Individual Guarantee, respectively, for failing to defend and
indemnify Mobil (Counts III and IV), for failing to properly
maintain and repair the service station (Counts V and VI), and
for failing to obtain Mobil's approval before transferring the
Mobil station to O'Mara on February 1, 2000 (Count VII). In Count
VIII, ExxonMobil seeks indemnification or contribution from
O'Mara, alleging that O'Mara was in sole possession and control
of the service station when Mr. Nusrein fell on February 18,
WJL and O'Mara have filed cross-claims against each other
seeking indemnification or contribution to the extent each is
liable to ExxonMobil. WJL has also filed a counter-claim against
ExxonMobil, alleging that ExxonMobil breached the franchise
agreement by failing to provide WJL with special management and
marketing training during the course of their relationship.
In the instant motions, ExxonMobil seeks summary judgment on
only Count VIII of the Complaint, its claim against O'Mara for indemnification or contribution based on negligence. Likewise,
WJL seeks summary judgment on O'Mara's cross-claim for
indemnification or contribution against WJL. WJL also supports
summary judgment in favor of ExxonMobil on Count VIII. O'Mara
opposes both motions.
II. LEGAL STANDARD
Summary judgment is appropriate "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c). The party
moving for summary judgment has the initial burden of showing the
basis for its motion. See Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the movant adequately supports its motion
pursuant to Rule 56(c), the burden shifts to the nonmoving party
to go beyond the mere pleadings and present evidence through
affidavits, depositions, or admissions on file showing a genuine
issue of material fact for trial. See id. at 324. The
substantive law determines which facts are material. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986). If the evidence is such that a reasonable jury
could return a verdict for the nonmoving party, then there is a
genuine issue of fact. See id.
When deciding a motion for summary judgment, all reasonable
inferences are drawn in the light most favorable to the
non-moving party. See Big Apple BMW, Inc. v. BMW of N. Am., Inc.,
974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912
(1993). Moreover, a court may not consider the credibility or
weight of the evidence in deciding a motion for summary judgment,
even if the quantity of the moving party's evidence far outweighs
that of its opponent. See id. Nonetheless, a party opposing
summary judgment must do more than just rest upon mere
allegations, general denials, or vague statements. See Trap
Rock Indus., Inc. v. Local 825, 982 F.2d 884, 890 (3d Cir.
A. ExxonMobil's Claim against O'Mara
ExxonMobil claims that O'Mara was the possessor of the Mobil
station at the time of Mr. Nusrein's fall and, consequently, that
O'Mara owes indemnification or contribution to ExxonMobil for the
settlement of Mr. Nusrein's claims. The Pennsylvania Supreme
Court has explained the fundamental difference between
contribution and indemnification as follows:
Contribution comes into force when one joint
tortfeasor has discharged a common liability or paid
more than its share of such liability, in which case
the joint tortfeasor is entitled to reimbursement
from the other tortfeasors to the extent that its
payment exceeded its own liability. Conversely, the
right of indemnification arises when there is a
"difference between the primary and the secondary
liability of two persons each of whom is made
responsible by the law to an injured party." In such
a case, the party that is secondarily liable may seek
complete reimbursement from the party that is
primarily liable for any damages the first-mentioned
party has paid.
Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368, 370
(Pa. 1951); see Kirschbaum v. WRGSB Assocs., 243 F.3d 145,
156 (3d Cir. 2001); Walker v. Eleby, 842 A.2d 389, 391
Indemnity "is a right which enures to a person who, without
active fault on his own part, has been compelled, by reason of
some legal obligation, to pay damages occasioned by the initial
negligence of another, and for which he himself is only
secondarily liable." McCabe, 77 A.2d at 370. "The difference
between primary and secondary liability is not based in degrees
of negligence or on any doctrine of comparative negligence a
doctrine which, indeed, is not recognized by the common law. . . .
It depends on a difference in the character or kind of the
wrongs which cause the injury and in the nature of the legal
obligation owed by each of the wrongdoers to the injured person."
Id. (citing examples, including the primary liability of a
negligent contractor and the secondary liability of the otherwise
uninvolved land owner).
A party seeking indemnity must first establish that it was
itself liable to the injured party and could have been compelled
to satisfy the claim. See Kirschbaum, 243 F.3d at 156;
Besser Co. v. Paco Corp., 671 F. Supp. 1010, 1012 (M.D.
Pa. 1987). Further, "the indemnitee [has] the burden of justifying
his payment of damages by offering against the indemnitor in the
second action practically the same evidence as was relied on to
establish the case against the indemnitee in the first action." Besser, 671 F. Supp. at
1012. Even where the indemnitee settles before the injured person
establishes his original tort claim, the indemnitee is required
to prove his case against the indemnitor in the same way that the
injured person would have been obligated to do. Actual legal
liability must be shown. Id. at 1014 (citing Tugboat Indian
Co. v. A/S Ivarans Rederi, 334 Pa. 15, 5 A.2d 153, 156 (1939);
Martinique Shoes, Inc. v. N.Y. Progressive Wood Heel Co.,
207 Pa. Super. 404, 217 A.2d 781 (1966)). In addition to proving
liability for the underlying tort action, the indemnitee must
also prove that its liability is secondary, or passive, compared
to the primary liability of the indemnitor. Id. (citing Phila.
Elec. Co. v. Hercules, Inc., 762 F.2d 303 (3d Cir. 1985)).
In Pennsylvania, claims for contribution are governed by the
Uniform Contribution Among Tortfeasors Act ("UCATA"),
42 Pa. Cons. Stat. Ann. §§ 8321 et seq. The statute provides that the
right of contribution exists among joint tortfeasors.
42 Pa. Cons. Stat. Ann. § 8324(a). The term "joint tortfeasor" means
"two or more persons jointly or severally liable in tort for the
same injury to person or property, whether or not judgment has
been recovered against all or some of them." 42 Pa. Cons. Stat.
Ann. § 8322. In contrast to a claim for indemnification, a
contribution claim is based on the fact that two or more joint
tortfeasors actively committed wrongs that contributed to the injury of another. See
McCabe, 77 A.2d at 372. A joint tortfeasor is not entitled to
contribution from another joint tortfeasor until he has paid to
discharge the common liability or has paid more than his pro rata
share. 42 Pa. Cons. Stat. Ann. at § 8324(b). Further, a settling
joint tortfeasor may recover contribution from a non-settling
joint tortfeasor only if the settlement "extinguished" the
liability of the non-settling joint tortfeasor. Id. at §
When settlement occurs before the injured person has proven his
original tort claim, the settling tortfeasor cannot enforce his
right to contribution unless he proves in a separate proceeding
that the party from whom he seeks contribution was in fact a
joint tortfeasor and that the settlement amount was reasonable.
See Besser Co. v. Paco Corp., 671 F. Supp. 1010, 1015 (W.D.
Pa. 1987). Also, if the settling party does not prove that he
himself is a joint tortfeasor, he is considered a volunteer and
is not entitled to contribution from a non-settling party. See
Montgomery County v. Microvote Corp., 320 F.3d 440, 450 (3d
Cir. 2003) (citing Charles v. Giant Eagle Markets, 513 Pa. 474,
522 A.2d 1, 2 (Pa. 1987)). A settling tortfeasor must establish
his culpability as a joint tortfeasor through adjudication or
concession of joint tortfeasor status in the settlement. Id.;
see Rocco v. Johns-Manville Corp., 754 F.2d 110, 114-15 (3d
Cir. 1985) (acknowledging settling party's joint tortfeasor
status because status may be obtained via adjudication or another "reliable means" such as judicial
determination or the settling party's concession) (quoting Mazer
v. Security Ins. Group, 507 F.2d 1338, 1342 (3d Cir. 1975));
Besser Co., 671 F. Supp. at 1015 ("[P]laintiff cannot avoid
establishing actual liability by seeking contribution as opposed
ExxonMobil must establish O'Mara's actual legal liability to
the Nusrein's to proceed on either an indemnification theory or a
contribution theory. In the instant motion, ExxonMobil seeks
summary judgment on that element only, claiming that O'Mara was
in sole possession of the service station when Mr. Nusrein fell
and that, consequently, O'Mara is liable for Mr. Nusrein's
To establish liability for negligence, a plaintiff must
establish the following four elements: (1) duty or obligation
recognized by the law requiring the actor to conform to a certain
standard of conduct; (2) a failure to conform to the standard
required; (3) a causal connection between the conduct and the
resulting injury; and (4) actual loss or damages resulting to the
interests of another. See Bethea v. Bristol Lodge Corp., No.
01-612, 2002 U.S. Dist. LEXIS 24411, at *30 (E.D. Pa. Dec. 19,
2002); Morena v. S. Hills Health Sys., 501 Pa. 634, 642 n. 4,
462 A.2d 680 (Pa. 1983).
The Pennsylvania Supreme Court has expressly adopted the Restatement (Second) of Torts §§ 328, et seq. (1965) to
describe the duties of a possessor of land to third parties.
See Kirschbaum, 243 F.3d at 152; Carrender v. Fitterer,
503 Pa. 178, 469 A.2d 120, 123 (1983). The Restatement defines a
possessor of land as:
(a) a person who is in occupation of the land with
intent to control it, or (b) a person who has been in
occupation of land with intent to control it, if not
other person has subsequently occupied it with intent
to control it, or (c) a person who is entitled to
immediate occupation of the land, if no other person
is in possession under Clauses (a) and (b).
Restatement § 328E. The Comment clarifies: "The important thing
in the law of torts is the possession, and not whether it is or
is not rightful between the possessor and some third person."
Id. at cmt. a.
The duty of a possessor of land toward a third party entering
the land depends upon whether the entrant is a trespasser,
licensee, or invitee. Carrender, 469 A.2d at 123; Updyke v. BP
Oil Co., 717 A.2d 546, 549 (Pa. Super. 1998) (discussing status
of third parties in gas station slip and fall case). If the third
party is an invitee, such as a business visitor, the possessor
owes a duty to protect the invitee from foreseeable harm. See
Kirschbaum, 243 F.3d at 152; Carrender, 469 A.2d at 123;
Restatement §§ 343, 343A. With respect to conditions on the
premises that are known to or discoverable by the possessor, the
possessor is subject to liability only if he:
(a) knows or by the exercise of reasonable care would
discover the condition, and should realize that it involves an unreasonable risk of harm to such
(b) should expect that they will not discover or
realize the danger, or will fail to protect
themselves against it, and
(c) fails to exercise reasonable care to protect them
against the danger.
Restatement § 343. A possessor of land is not liable if the
dangerous condition on the premises is known or obvious to the
invitee. Restatement § 343A; Carrender, 469 A.2d at 123;
Atkins v. Urban Redev. Auth. of Pittsburgh, 489 Pa. 344,
414 A.2d 100, 104 (1980) (possessor must have reasonable belief that
dangerous condition would be known and obvious to invitee). Thus,
a possessor of land is obligated to use reasonable care in
discovering and repairing dangerous conditions on his property
that would not be known or obvious to invitees. See
Kirschbaum, 243 F.3d at 152; Carrender, 469 A.2d at 123;
Restatement §§ 343, 343A.
In support of its partial summary judgment motion, ExxonMobil
explains that on February 1, 2000, WJL sold its interest in the
service station to O'Mara, who took possession of the station. As
evidence of O'Mara's possession, ExxonMobil points to O'Mara's
deposition where he states that after the second or third week of
February 2000, he was running the service station and salting the
area and removing ice and snow. See O'Mara Dep. at 31-32
(Docket No. 17, Ex. F). Therefore, ExxonMobil argues, when Mr.
Nusrein fell on February 18, O'Mara was liable as the possessor
The Court concludes that ExxonMobil has established O'Mara's possession and control of the service station at the time Mr.
Nusrein was injured. The Court must still deny ExxonMobil's
motion for partial summary judgment, however, because possession
is just one element of the many elements ExxonMobil must
establish to prove Mr. Nusrein's negligence claim against O'Mara.
As the Court explained above, even where an indemnitee settles
before the injured person establishes his original tort claim,
the indemnitee is required to prove his case against the
indemnitor in the same way that the injured person would have
been obligated to do. Besser, 671 F. Supp. at 1012 (emphasis
added); see also Tugboat Indian Co. v. A/S Ivarans Rederi,
334 Pa. 15, 5 A.2d 153, 156 (1939); Martinique Shoes, Inc. v.
N.Y. Progressive Wood Heel Co., 207 Pa. Super. 404, 217 A.2d 781
In other words, ExxonMobil must prove not only that O'Mara
possessed the land, ExxonMobil must also prove that O'Mara knew
or reasonably should have known of the condition, that the
condition was not known or obvious to Mr. Nusrein, and that
O'Mara did not use reasonable care in trying to remedy the
condition. See Kirschbaum, 243 F.3d at 152; Carrender, 469
A.2d at 123; Restatement §§ 343, 343A. Here, O'Mara's deposition
indicates that he admits to possession of the service station
only. O'Mara does not admit that he acted negligently. Further,
ExxonMobil has proffered no evidence of O'Mara's alleged
negligence in maintaining the premises nor evidence that the ice
Mr. Nusrein allegedly slipped on was not known or obvious to him. ExxonMobil has not
even evidenced that there was snow accumulation on the day Mr.
In sum, the Court agrees that ExxonMobil has established
O'Mara's possession of the service station, however, questions of
material fact still remain as to O'Mara's ultimate liability in
the Nusrein's underlying negligence action. Accordingly, the
Court denies ExxonMobil's motion for partial summary judgment on
Count VIII of the Complaint. Likewise, the Court denies WJL's
motion for partial summary judgment on O'Mara's cross-claim.
An appropriate Order follows. ORDER
AND NOW, this day of July, 2004, upon consideration of
Plaintiff ExxonMobil Oil Corp.'s Motion for Partial Summary
Judgment against Defendant Steven O'Mara (Docket No. 17),
Defendant Steven O'Mara's response thereto (Docket No. 23),
Defendants WJL Management Enterprises' and William J. Lucchesi's
Motion for Partial Summary Judgment as to Defendant Steven
O'Mara's Crossclaim (Docket Nos. 18, 19 & 20), Defendant Steven
O'Mara's response (Docket No. 22), WJL Management Enterprises'
and William J. Lucchesi's reply thereto (Docket No. 24), and for
the reasons stated in the accompanying Memorandum, IT IS HEREBY
(1) ExxonMobil Oil Corp.'s Motion for Partial Summary Judgment
is DENIED; and
(2) WJL Management Enterprises' and William J. Lucchesi's
Motion for Partial Summary Judgment is DENIED.