Bridston by Bridston v. Dover Corp., 10614

Decision Date11 July 1984
Docket NumberNo. 10614,10614
Citation352 N.W.2d 194
Parties18 Ed. Law Rep. 1047 Rebecca BRIDSTON, a minor by Margaret BRIDSTON, her Guardian Ad Litem, and Paul J. Bridston, Plaintiffs, v. DOVER CORPORATION, a foreign corp., Gust Lagerquist and Sons, Inc., a foreign corp., Twin City Construction Co., a ND corp., Wells, Denbrook, Adams, Wagner Architects, P.C., a ND professional corp., and the University of North Dakota, Defendants, and The UNIVERSITY OF NORTH DAKOTA, Third-Party Plaintiff and Appellee, v. The YOUNG MEN'S CHRISTIAN ASSOCIATION, d/b/a "Y Family Center", a corp., Third-Party Defendant and Appellant, Judy Smith, Third-Party Defendant. Civ.
CourtNorth Dakota Supreme Court

Cameron W. Hayden [argued], of O'Grady, Morley & Morley, Ltd., Grand Forks, for appellant Young Men's Christian Ass'n.

Carol E. Harrang [argued], of Vaaler, Gillig, Warcup, Woutat, Zimney & Foster, Grand Forks, for appellee University of North Dakota.

GIERKE, Justice.

This is an appeal by the third-party defendant, Young Men's Christian Association [YMCA], from a summary judgment entered in the District Court of Grand Forks County in favor of defendant and third-party plaintiff, the University of North Dakota [UND]. We affirm.

On November 9, 1977, UND leased the Chester Fritz Auditorium to Judy Smith, an employee of the YMCA, for the purpose of presenting a dance performance by the "Judy Rae Dancers". The lease agreement, which was entitled "PERMIT" authorized the permittee to use and occupy the Auditorium from 8:00 a.m., on December 11, 1977, until 1:00 a.m., on December 12, 1977, for the sum of $500.00 plus expenses.

On December 11, Rebecca Bridston, one of the Judy Rae Dancers, was rehearsing for the dance performance scheduled for that evening. During the rehearsal, Ms. Bridston was injured when a UND employee raised the hydraulic stage lift on which she was standing.

As a result of her injuries, Ms. Bridston brought suit against a number of defendants, including UND. With regard to UND, the complaint alleged that a UND employee negligently raised the stage lift after being warned to stop and lower the lift. The complaint also alleged that UND was generally negligent. No allegations of negligence were made against either the YMCA or Judy Smith.

By summons and complaint, UND commenced a third-party action against the YMCA and Smith. The third-party complaint alleges that UND was entitled to indemnity by reason of contractual agreement. Again, there were no allegations of negligence on the part of YMCA or Judy Smith.

The YMCA and Smith interposed answers and moved for a partial summary judgment dismissing the third-party claim on the basis that there was no issue of material fact and that UND was not entitled to indemnity as a matter of law. The trial court found that there was no issue of material fact but denied the motion.

A settlement was subsequently reached between Bridston and the defendants. The district court entered judgment of dismissal with prejudice in the main action but severed the third-party action. UND then presented its own motion for a summary judgment which was granted.

The issue raised in this appeal is whether or not the language contained in paragraph 22 of the lease agreement entitled "INDEMNITY" requires the YMCA and Smith to defend and indemnify the University of North Dakota for the consequences of its own alleged negligence.

Paragraph 22 of the lease agreement states as follows:

"22. INDEMNITY--PERMITTEE agrees to conduct its activities upon the premises so as not to endanger any person lawfully thereon; and to indemnify and save harmless the UNIVERSITY against any and all claims for loss, injury or damage to persons or property including claims of employes of PERMITTEE or any contractor or subcontractor, arising out of the activities conducted by the PERMITTEE, its agents, members, or guests. The PERMITTEE shall be required to furnish satisfactory evidence of liability insurance, including a copy of the endorsement adding the UNIVERSITY as an additional insured. The limits of liability required are: Bodily injury liability $100,000 per person, $500,000 per occurance [sic], and $10,000 for property damage per occurance [sic]. PERMITTEE will not do, or permit to be done, anything in or upon any portion of the premises or bring or keep anything therein or thereon which will in any way conflict with the conditions of any insurance policy upon the building or any part thereof, or in any way increase any rate of insurance upon the building or on property kept there; nor shall PERMITTEE without the written consent of the UNIVERSITY put up or operate any engine or motor or machinery on the premises or use oils, burning fluids, camphene, kerosene, naptha or gasoline for either mechanical or other purposes or any agent other than electricity for illuminating the premises."

Ordinarily the construction of a contract to determine its legal effect is a question of law for the court. Person v. Hass, 273 N.W.2d 710 (N.D.1979). In construing the terms of a contract, the contract should be considered as a whole, "and every clause, sentence, or provision, should be given effect consistent with the main purpose of the contract". Delzer Construction Company v. New Marian Homes Corporation, 117 N.W.2d 851, 856 (N.D.1962). See also Sec. 9-07-06 of the North Dakota Century Code. It is almost universally held that an indemnity agreement will not be interpreted to...

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    ...based on the potential fault of the parties. See, e.g., Rupp v. American Crystal Sugar Co., 465 N.W.2d 614 (N.D.1991); Bridston v. Dover Corp., 352 N.W.2d 194 (N.D.1984). Compare Barsness v. General Diesel & Equipment Co., Inc., 422 N.W.2d 819 (N.D.1988); Vanderhoof v. Gravel Products, Inc.......
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