Bituminous Casualty Corporation v. Hedinger
| Decision Date | 27 February 1969 |
| Docket Number | No. 16756.,16756. |
| Parties | BITUMINOUS CASUALTY CORPORATION, Plaintiff-Appellant, v. Hubert HEDINGER d/b/a Hedinger Roofing Company, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Robert H. Hahn, Fred P. Bamberger, Evansville, Ind., for plaintiff-appellant, Bamberger, Foreman, Oswald & Hahn, Evansville, Ind., of counsel.
William E. Statham, Evansville, Ind., for appellee.
Before HASTINGS and KNOCH, Senior Circuit Judges, and SWYGERT, Circuit Judge.
Plaintiff-Appellant, Bituminous Casualty Corporation, insured Jasper Rubber Products, of Jasper, Indiana, hereinafter called "Jasper Products," under a liability insurance policy whereby Bituminous Casualty Corporation undertook to defend any suit against Jasper Products, alleging injury and seeking damages, and to pay all sums which Jasper Products became legally obligated to pay as damages because of injury or death by accident.
On June 13, 1961, while the policy was in force, Jasper Products entered into an oral contract with the Defendant-Appellee, Hubert Hedinger, d/b/a Hedinger Roofing Company to make certain roofing repairs at the Jasper Products plant. During the performance of this work, Bernard E. Helming, an employee of the defendant, came into physical contact with an electrical high tension wire on the roof and was killed.
The plaintiff subsequently paid $17,500 in settlement of a claim against Jasper Products by the Personal Representative of the Estate of Bernard E. Helming, who brought suit in the Indiana state court against Jasper Products and the City of Jasper, Indiana, for wrongful death. It was alleged, inter alia, that Jasper Products was negligent in failing to have the power turned off in the high tension electrical wires, strung only four to five feet above its roof, while repair work was being carried out on that roof. These wires carried the electrical energy for operation of the plant. At the time of the settlement, Jasper Products expressly denied responsibility for the death of Bernard Helming.
Plaintiff then brought this action in the U. S. District Court (jurisdiction being based on diversity of citizenship) to recover reimbursement of its expenses in defending the state court action and to be indemnified for the payment made towards the settlement on behalf of Jasper Products.
Defendant moved for summary judgment. Plaintiff filed a cross-motion for summary judgment. The District Court granted the former and denied the latter, and this appeal followed.
It is plaintiff's view that it was entitled to indemnity because the defendant failed to perform his work in a safe manner. Plaintiff asserts that defendant, an experienced roofing contractor, had an implied duty to take all necessary precautions for his employees' safety, that when his breach resulted in injury, Jasper Products became liable for that injury, but was nevertheless entitled to restitution. Plaintiff reasons that defendant on other occasions had asked the City of Jasper to move, temporarily, some of its electrical attachments which were in the way of his work; that he was familiar with this particular roof and had been cautioned to "watch the wires" (although not evidently why) by Oscar Lampert, treasurer of Jasper Products, who pointed out to the defendant what he wanted done, and then left. This oral work order set out no details.
The plant was in operation and the machines to which the wires carried current remained in use throughout the day, after the oral contract was made. For a fixed price, the defendant was to patch and coat the...
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...which can be found to rest upon the employer himself cannot be delegated to an independent contractor. See, Bituminous Casualty Corporation v. Hedinger (7 Cir., 1969), 407 F.2d 655. Relying on the first exception to the general rule or non-delegable duty Cummings and Cook argue that the tre......
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