Campbell v. Southern Roof Deck Applicators, Inc.

• Decision Date: 04 December 1981
• Citation: 406 So.2d 910
• Parties: Donald C. CAMPBELL, et al. v. SOUTHERN ROOF DECK APPLICATORS, INC. 80-808.
• Court: Alabama Supreme Court

Page 910

406 So.2d 910

Donald C. CAMPBELL, et al. v. SOUTHERN ROOF DECK APPLICATORS, INC.

80-808.

Supreme Court of Alabama.

Dec. 4, 1981.

Ernest W. Weir, Birmingham, for appellants.

W. Lee Pittman of London, Yancey, Clark & Allen, Birmingham, for appellee.

BEATTY, Justice.

Appeal from a summary judgment entered in favor of the defendant, Southern Roof Deck Applicators, Inc. We affirm.

This action began as a bill for a declaratory judgment brought by the plaintiffs as trustees of the Fultondale First Baptist Church against Southern Roof Deck Applicators, Inc., Neil Bruce d/b/a Neil Bruce Associates (the architect), and two fictitious parties. The bill sought a declaration of the respective rights of the parties under a contract for the construction of a new roof for the church building. The bill was later amended as a demand for damages from the defendants allegedly due because of their negligence. A later amendment to the complaint alleged the following:

2. Plaintiffs aver that they entered into a contract under date of December 22, 1977, with defendant Southern Roof Deck Applicators, Inc., wherein said defendant agreed to construct a new roof on an existing building owned by plaintiffs; that as a part of said contract, defendants agreed to indemnify and hold harmless the owner and the 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 under contract; that defendants negligently performed said work under said contract in such a negligent manner so as to cause losses, damages, expenses, loss of use of the building or structure on which said work was performed by defendant, Southern Roof Deck Applicators, Inc., plus the additional expense of litigation, including a reasonable attorney's fee therein, all to the damage of the plaintiffs as a proximate consequence of said negligent performance of the work under said contract in that the roof structure was caused to bear excessive weight causing a break, snap and/or collapse of the structural support beam timbers upon which said work was performed and making such structure unfit for the use thereof, all to the damages of plaintiffs for which indemnification is here demanded.

In due course the plaintiffs and Southern Roof moved for summary judgment on the plaintiffs' claim for a reasonable attorney's fee under the contract, based upon the pleadings, interrogatories, answers, request for admissions and answers, affidavits, and the contract referred to. The defendant Neil Bruce d/b/a Neil Bruce Associates, also moved for summary judgment on his cross claim against Southern Roof, on the theory that Southern Roof likewise had indemnified him for attorneys' fees under Article 10.10 of the contract between plaintiffs and Southern Roof. The trial court granted the motion of Southern Roof and denied the motions of plaintiffs and Bruce. The effect of these rulings was that under the contract in question the defendant contractor, as a matter of law, had not agreed to indemnify the plaintiffs for attorneys' fees incurred in the litigation between themselves.

A proper Rule 54(b) certification was entered and the plaintiffs have appealed the ruling adverse to them on that issue.

The contract in question, a standard AIA form contract, contained two sections bearing on the issue of indemnification. Article 10.10 states:

The Contractor shall indemnify and hold harmless the Owner and the 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 itself including the loss of use resulting therefrom, and (2) is caused in whole or in part by any negligent act or omission of the Contractor, any Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of...