Burcham v. Procter & Gamble Mfg. Co.
| Decision Date | 18 February 1993 |
| Docket Number | No. 91-2183C(6).,91-2183C(6). |
| Court | U.S. District Court — Eastern District of Missouri |
| Parties | Donald BURCHAM, Plaintiff, v. The PROCTER & GAMBLE MANUFACTURING COMPANY, Defendant/Third-Party Plaintiff, v. BAZAN PAINTING COMPANY, Third-Party Defendant. |
Timothy J. Farrell, Burlison & Farrell, O'Fallon, MO, for Donald Burcham.
William M. Corrigan, Jr., Frank N. Gundlach, Armstrong and Teasdale, St. Louis, MO, for Procter & Gamble Manufacturing Co.
John G. Doyen, Brinker and Doyen, St. Louis, MO, for Bazan Painting Co.
This matter is before the Court on the motion of defendant Bazan Painting Company's (Bazan) motion to dismiss a third-party claim for indemnification brought by defendant, Procter & Gamble Manufacturing Company (P & G). The motion has been fully briefed by the parties.
In this suit plaintiff Donald Burcham seeks recovery from P & G for injuries allegedly sustained when he stepped into a hole on the roof of one of P & G's facilities. At the time of the incident Burcham was performing work for his employer, Bazan, at a P & G facility. P & G removed the action from the Circuit Court for the City of St. Louis and filed a third party claim sounding in indemnity against Bazan. P & G's claim against Bazan is premised upon an alleged contractual agreement by Bazan to indemnify P & G for claims arising as the result of personal injury sustained by Bazan's employees unless those injuries are found to be caused by the sole negligence of P & G. See Third-Party Complaint at Par. 5.
Bazan has moved to dismiss this claim on several grounds: 1) that the contractual indemnity provision is unenforceable because it appears on the back of a preprinted form and is inconspicuous; 2) that the negligence alleged is solely that of P & G; and 3) that P & G is not entitled to indemnification because it acquiesced in the dangerous condition of its property which allegedly caused plaintiff's injury.
Under Missouri law a non-employer can enter into an agreement with an employer by which the employer agrees to indemnify the non-employer, despite the non-employer's negligence. Waterwiese v. KBA Const. Managers, Inc., 820 S.W.2d 579, 584 (Mo.App.1991). Under Missouri law such provisions are narrowly construed and the terms must be clear and unequivocal. See id. "The indemnity provision must also be placed in the contract so that the indemnitor has fair notice of its existence...." United States v. Conservation Chemical Co....
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Economy Forms Corp. v. J.S. Constr.
...indemnity paragraph does not satisfy the requirement that an indemnity provision be conspicuous. See Burcham v. Procter & Gamble Manufacturing Co., 812 F. Supp. 947, 948 (E.D. Mo. 1993). Before an indemnitor will be held liable for losses resulting from the indemnitee’s negligence, the inte......
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Direct Enters., Inc. v. Sensient Colors LLC, 1:15-cv-01333-JMS-TAB
...be important factors in the determining enforceability and interpretation of that provision. See, e.g., Burcham v. Procter & Gamble Mfg. Co., 812 F. Supp. 947, 948 (E.D. Mo. 1993) (concluding that "[u]pon review of the contract...the Court concludes that the indemnity provision at issue her......