Brown v. Boyer-Washington Blvd. Associates, BOYER-WASHINGTON
| Decision Date | 30 June 1993 |
| Docket Number | BOYER-WASHINGTON,JACOBSEN-ROBBINS,No. 910082,910082 |
| Citation | 856 P.2d 352 |
| Court | Utah Supreme Court |
| Parties | Daniel C. BROWN, Plaintiff and Appellee, v.BOULEVARD ASSOCIATES, a Utah limited partnership, Boman & Kemp Steel and Supply Company, Inc., a Utah corporation, and Jacobsen-Robbins Construction Company, a Utah corporation, Defendants.CONSTRUCTION COMPANY, a Utah corporation, Third-Party Plaintiff and Appellant, v. CCC & T, a Utah corporation, and Boman & Kemp Steel and Supply, Inc., a Utah corporation, Third-Party Defendants and Appellees. |
L. Rich Humpherys, Mark L. Anderson, Karra J. Porter, Salt Lake City, for Jacobsen-Robbins.
James R. Black, Salt Lake City, for CCC & T.
Robert G. Gilchrist, Salt Lake City, for Bowman & Kemp.
Roger D. Sandack, Edward B. Havas, W. Brent Wilcox, Salt Lake City, for Brown.
Defendant Jacobsen-Robbins Construction Company ("Jacobsen") appeals from an order dismissing its third-party complaint against CCC & T, Inc., and from an order granting defendant Boman & Kemp Steel and Supply Company, Inc. ("Boman"), summary judgment on Jacobsen's cross-claim against it. The trial court certified the two interlocutory orders as final and appealable pursuant to rule 54b, Utah Rules of Civil Procedure.
Jacobsen contracted as a general contractor to construct a six-story office building in Ogden for Boyer-Washington Boulevard Associates ("Boyer"). One term of the contract required Jacobsen to install a safety cable around all elevated exterior portions of the building. Jacobsen subsequently subcontracted with Boman to supply and erect all steel necessary in the construction of the building but not to install the safety cable. Jacobsen kept that duty. Boman, in turn, contracted with CCC & T to erect the steel.
Plaintiff Daniel Brown was a welder employed by CCC & T. His duties required him to weld metal flooring sheets. He secured the flooring sheets to the steel framework of the building at various points using welding equipment while wearing a sight-restricting welder's mask. As Brown began to weld along a floor beam, he would place a weld and then step sideways to his left. While attaching the flooring on the fourth floor, Brown lost track of where he was in relation to the side of the building. He stepped off the building at a place where there was a gap in the safety cable which had been strung by Jacobsen. Brown was seriously injured and received workers' compensation benefits from CCC & T pursuant to the Utah Workers' Compensation Act, Utah Code Ann. §§ 35-1-1 to -108 (1988 & Supp.1992).
Brown brought this action against Jacobsen and Boyer for damages, alleging that his injuries were caused by Jacobsen's failure to install adequate safety cables to protect construction workers. Jacobsen then filed a third-party complaint against CCC & T after a representative of the Utah Industrial Commission's Division of Occupational Safety and Health investigated the accident and concluded that CCC & T had failed to train Brown in safe welding procedures. The third-party complaint did not seek money damages because CCC & T was immune from tort liability under the exclusive remedy provision of the Workers' Compensation Act, section 35-1-60, but sought only the apportionment of CCC & T's fault. Jacobsen's complaint was in pursuance of Utah Code Ann. § 78-27-41, which provides that any defendant who is a party to litigation may join as parties any defendants who have caused or contributed to the injury or damage for which recovery is sought for the purpose of determining their respective proportions of fault. Section 78-27-38 provides that "no defendant is liable to any person seeking recovery for any amount in excess of the proportion of fault attributable to that defendant."
Jacobsen also filed a cross-claim against Boman, seeking indemnity for any liability it might incur. The cross-claim was based on indemnity provisions contained in both the prime contract and the subcontract.
CCC & T moved the trial court to dismiss the third-party complaint on the ground that it was immune from liability to Jacobsen under section 35-1-60 and that it could not be joined as a defendant for the purpose of apportioning fault. The court granted CCC & T's motion, ruling that
Subsequently, Boman moved for summary judgment on Jacobsen's cross-claim for indemnity. The trial court granted the motion without explaining the basis for its ruling other than that the cross-claim was "found to be barred by Utah law." Jacobsen appeals.
The trial court erred in dismissing Jacobsen's third-party complaint against CCC & T. Since this case was argued, we have decided Sullivan v. Scoular Grain Co., 853 P.2d 877 (Utah 1993), where we held that the fact finder must account for the relative proportion of fault of a plaintiff's employer that may have caused or contributed to an accident even though the employer is immune from suit. We reached that result because under section 78-27-38 Jacobsen cannot be held liable for any amount in excess of the proportion of fault attributable to it, as fully explained in Sullivan. This limitation on liability necessitates that the fact finder determine the proportion of fault (if any) attributable to Brown's employer.
In its cross-claim against Boman, Jacobsen sought "full and complete indemnity for all claims and liabilities, court costs, attorneys' fees and other litigation expenses" incurred by Jacobsen in this action brought by Brown. Jacobsen relied upon a provision for indemnity contained in the prime contract between Jacobsen and the owner, Boyer, which provision Jacobsen contended was incorporated by reference into its subcontract with Boman and therefore was binding on...
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