Bartak v. Bell-Gallyardt & Wells, Inc.

• Decision Date: 18 July 1979
• Docket Number: No. CIV 77-5042.,CIV 77-5042.
• Citation: 473 F. Supp. 737
• Parties: Carol A. BARTAK, Special Administratrix for the Estate of John A. Bartak, Deceased v. BELL-GALLYARDT & WELLS, INC., Hammell-Green-Abrahamson, Inc., Reid Burton Construction Co., Inc., Leslie Koss, and Curran V. Nielson Painting and Decorating, Inc.
• Court: U.S. District Court — District of South Dakota

473 F. Supp. 737

Carol A. BARTAK, Special Administratrix for the Estate of John A. Bartak, Deceased v. BELL-GALLYARDT & WELLS, INC., Hammell-Green-Abrahamson, Inc., Reid Burton Construction Co., Inc., Leslie Koss, and Curran V. Nielson Painting and Decorating, Inc.

No. CIV 77-5042.

United States District Court, D. South Dakota.

July 18, 1979.

Robert L. Varilek, Rapid City, S. D., for plaintiff.

Franklin J. Wallahan, William G. Porter, Rapid City, S. D., Charles M. Thompson, Pierre, S. D., Robert F. LaFleur, Rapid City, S. D., for defendants.

MEMORANDUM OPINION

BOGUE, District Judge.

On April 20, 1979, a jury verdict was rendered in favor of the plaintiff and against defendants Reid Burton Construction Co., Inc., Bell-Gallyardt & Wells, Inc., and Leslie Koss, in the amount of $600,107.17. The liability was apportioned by the jury among the defendants as follows: Reid Burton Construction Company 65%, Bell-Gallyardt & Wells 35%, Curran V. Nielson 0%. Issues involving contribution, indemnity and costs have arisen before this Court.

I. CONTRIBUTION

The first issue is whether there remains any right of contribution against Curran V. Nielson. Contribution among joint tort-feasors is set forth in S.D.C.L. 15-8-11 through 15-8-22, inclusive. S.D. C.L. 15-8-11 states:

For the purposes of sections 15-8-12 to 15-8-22, inclusive, 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.

S.D.C.L. 15-8-12 states:

The right of contribution exists among joint tort-feasors.

Curran V. Nielson does not qualify as a joint tort-feasor. The jury specifically found that Curran V. Nielson was not negligent in any manner, and furthermore was not liable for the injuries to the plaintiff. Therefore, no right of contribution exists against Curran V. Nielson.

II. INDEMNITY

Bell-Gallyardt & Wells and Leslie Koss allege that the contract entered into between the architects and Reid Burton Construction compels this Court to order that Reid Burton Construction indemnify Bell-Gallyardt & Wells and Leslie Koss. The issue presented is whether the terms of the contract, specifically §§ 4.18.1 and 4.18.3 require Reid Burton Construction, as the general contractor, to indemnify Bell-Gallyardt & Wells and Leslie Koss for the losses assessed against them by the jury. This Court holds that Reid Burton Construction is not liable for the losses attributed to Bell-Gallyardt and Leslie Koss.

The Eighth Circuit Court of Appeals in the case of Becker v. Black and Veatch Consulting, 509 F.2d 42 (8th Cir. 1974) set forth the law in South Dakota on construction of indemnity contracts.

In construing any particular provision or contract, it is necessary to examine the contract as a whole, Eberle v. McKeown, 83 S.D. 345, 159 N.W.2d 391 (1968); Moriarity v. Tomlinson, 58 S.D. 431, 235 N.W. 363 (1931). An indemnity contract is to be construed according to the clear and unequivocal expression of the parties intent embodied in the ordinary meaning of the words used. Associated Engineers, Inc. v. Job, 370 F.2d 633 supra; Schull Construction Co. v. Koenig, 80 S.D. 224, 121 N.W.2d 559 (1963). Any doubts are to be resolved in favor of the indemnitor. Id.

Each case must rest upon the construction of the contract under consideration. The contract must be given that construction which will most nearly carry out the intentions of the parties. Moriarity v. Tomlinson, supra.

Bell-Gallyardt & Wells and Leslie Koss contend that the indemnitor (Reid Burton Construction) has the burden of proof. This Court disagrees. A number of jurisdictions have held that the party seeking indemnity has the burden of proof. Gimbel Brothers v. William H. Vanderherchen, 468 F.2d 597 (3rd Cir. 1972); Le Blanc v. 2-R Drilling Company, 527 F.2d 1316 (5th Cir. 1976); and Lusich v. Bloomfield S. S. Co., 355 F.2d 770 (5th Cir. 1966).

Specifically, the Third Circuit Court of Appeals stated in Gimbel Brothers v. Vanderherchen, supra, at page 599, that to relieve a party of his own negligence, "the language must be clear and unequivocal and the burden of proof falls on the party seeking such relief." The Court further stated that, "This burden is even greater where as here, such party drafted the agreement." Gimbel Brothers v. Vanderherchen, supra, at page 599.

Judge Fred Nichol, interpreting South Dakota law, in the case of Becker v. Central Telephone & Utilities, 393 F.Supp. 1357 (D.S.D.1975), imposed the burden of proof on the party seeking indemnity. The party seeking indemnity must:

Prove that its liability to the plaintiff is based on conduct falling within the scope of the indemnity clause of the contract . . ..

The editors of Am.Jur.2d are also in accord with this Court's determination as to the burden of proof.

The burden of proof is on the indemnitee to clearly prove all elements of his case against the indemnitor. In an action to recover indemnity under an express contract, the burden is on the indemnitee to prove that the liability for which he has been charged is within the scope of the agreement.

In this instance, the jury verdict revealed that both Bell-Gallyardt & Wells-Leslie Koss and Reid Burton Construction Company were negligent. The jury determined that 35% of the negligence which proximately caused the injury was attributed to Bell-Gallyardt & Wells and Leslie Koss, while 65% was attributed to Reid Burton Construction Company. The indemnity provision in question is located in a form contract written by Bell-Gallyardt & Wells. It is axiomatic that between two reasonable and practical constructions of an ambiguous contractual provision, that provision should be construed less favorably to that party which selected the contract language. United States v. Seckinger, 397 U.S. 203, 90 S.Ct. 880, 887, 25 L.Ed.2d 224 (1970).

Specific language must be used in an indemnity contract if one is to be held liable for losses attributable to another's negligent acts.

A contract of indemnity purporting or claiming to relieve one from consequences of his failure to exercise ordinary care must be strictly construed. Accordingly it is frequently stated as a general rule that a contract of indemnity will not be construed to indemnify the indemnitee against losses resulting from his own negligent acts unless such intention is expressed in clear and unequivocal terms, or unless no other meaning can be ascribed to it. Mere general, broad and seemingly all-inclusive language which in the indemnifying agreement has been said not to be sufficient to impose liability for the indemnitee's own negligence. It has been held, for instance, with regards to words, "any and all liability." 41 Am.Jur.2d § 15. p. 699-700.

Section 4.18.1 provides:

§ 4.18.1. The contractor shall indemnify and hold harmless the owner and architect and their agents and employees from and against all claims, damages, losses and expenses, including attorneys' fees arising out of or resulting from the performance of the work provided that any such claim, damage, loss, or expense (1) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the work

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