Braegelmann v. Horizon Development Co., C9-85-159
| Decision Date | 30 July 1985 |
| Docket Number | No. C9-85-159,C9-85-159 |
| Citation | 371 N.W.2d 644 |
| Parties | Peter BRAEGELMANN, et al., Respondent, v. HORIZON DEVELOPMENT COMPANY, Defendant and third party Plaintiff, Respondent, v. BERNARD L. DALSIN COMPANY, third party Defendant, Appellant. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
Under the terms of an indemnification clause, the general contractor is not contractually entitled to indemnification from the subcontractor to the extent damages were caused by the general contractor's own negligence.
Mitchell R. Spector, Minneapolis, for respondent Braegelmann.
M.C. Green, St. Paul, for respondent Horizon Development Co.
Robert L. Bach, St. Paul, for appellant.
Heard, considered and decided by POPOVICH, C.J., and NIERENGARTEN and RANDALL, JJ.
Appellant Bernard L. Dalsin Co. appeals from summary judgment holding that Dalsin is obligated to indemnify respondent Horizon Development Co. for all damages under the terms of an indemnification contract irrespective of any contributory negligence on the part of Horizon. On appeal, Dalsin contends the indemnification clause does not entitle Horizon to indemnification for damages to the extent caused by Horizon's negligence. We reverse.
Respondent Peter Braegelmann, an employee of Bernard L. Dalsin Co. (Dalsin), brought suit against Horizon Development Company (Horizon) for personal injuries sustained while working on a construction project in Arden Hills, for which Horizon was the general contractor. Horizon filed a third-party action against Dalsin, the subcontractor, alleging Dalsin's own negligence at least partially caused Braegelmann's accident.
Horizon tendered the defense to Dalsin and asserted its claims against Dalsin for contractual indemnification pursuant to the subcontract executed on March 3, 1981. The subcontract was an American Institute of Architects standard form (AIA Document A401--1978 Edition). Clause 11.11.1 provides, in part:
To the fullest extent permitted by law, the Subcontractor shall indemnify and hold harmless the * * * Contractor and all of their agents and employees from and against all claims, damages, losses and expenses * * * arising out of or resulting from the performance of the Subcontractor's Work under the Subcontract, provided that any such claim, damage, loss, or expense is attributable to bodily injury, sickness, disease, or death, * * * to the extent caused in whole or in part by any negligent act or omission of the Subcontractor or anyone directly or indirectly employed by him or anyone for whose acts he may be liable, regardless of whether it is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, or abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this Paragraph 11.11.
Dalsin refused to accept the tender of defense.
Horizon and Dalsin filed cross-motions for summary judgment regarding the scope of this indemnification clause. The trial court entered summary judgment in favor of Horizon, holding that if Dalsin is in any degree negligent, Dalsin is obligated to indemnify Horizon for all damages irrespective of any contributory negligence on the part of Horizon. The proceedings were stayed pending appellate review. Dalsin appealed.
Under the terms of the indemnification clause, is Horizon entitled to indemnification for damages resulting from its share of negligence?
Dalsin asserts that, under the clause, Horizon is entitled to indemnification only to the extent of Dalsin's share of the total negligence. Under this interpretation, if Dalsin is found to be only 20% negligent, Dalsin would be obligated to indemnify Horizon for 20% of the eventual damages, if any, to Braegelman.
Indemnification agreements seeking to indemnify a party for losses resulting from that party's own negligent acts are not favored in the law. Such agreements contained in, or executed in connection with, building and construction contracts entered into after August 1, 1984, are void and unenforceable. Minn.Stat. § 337.02 (1984). Agreements entered into prior to August 1984, including the provision before us, are not construed in favor of indemnification unless such intention is expressed in clear and unequivocal terms, or unless no other meaning can be ascribed to it. In short, such provisions are strictly construed against the party seeking indemnification. Johnson v. McGough Construction Co., 294 N.W.2d 286 (Minn.1980).
In Johnson, the Minnesota Supreme Court applied strict construction to a standard Associated General Contractors subcontract agreement which contained the following indemnity provision:
The Sub-Contractor agrees to assume entire responsibility and liability for all damages * * * and the Sub-Contractor agrees to indemnify and save harmless the Contractor * * *...
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