Coblentz v. Hotel Employees & Restaurant Employees Union Welfare Fund

• Decision Date: 22 October 1996
• Docket Number: No. 26018,26018
• Parties: Judy COBLENTZ, David Ray Coblentz, Frances Ann Freedman Property Management, a Foreign Corporation, and Annette Allgood, Appellants, v. HOTEL EMPLOYEES & RESTAURANT EMPLOYEES UNION WELFARE FUND, a Nevada Corporation, Respondent.
• Court: Nevada Supreme Court

Page 496

925 P.2d 496

112 Nev. 1161

Judy COBLENTZ, David Ray Coblentz, Frances Ann Freedman Property Management, a Foreign Corporation, and Annette Allgood, Appellants, v. HOTEL EMPLOYEES & RESTAURANT EMPLOYEES UNION WELFARE FUND, a Nevada Corporation, Respondent.

No. 26018.

Supreme Court of Nevada.

Oct. 22, 1996.

Beckley, Singleton, Jemison & List and Daniel F. Polsenberg, Las Vegas; Perry & Spann and Douglas G. Gardner, Las Vegas; and Carol Menninger, Las Vegas, for Appellants.

Barker, Gillock, Koning & Brown, Las Vegas, for Respondent.

OPINION

PER CURIAM:

In November 1989, appellant Annette Allgood fell on an external stairway at the office building where she worked and was injured. Appellants Judy and David Coblentz owned this building. Respondent Hotel Employees & Restaurant Employees International Union Welfare Fund (the Fund) leased the office space in the building from the Coblentzes at that time, and American Benefits Plan Administrators (ABPA) subleased the space from the Fund. ABPA occupied the premises at the time of the accident and performed administrative services for the Fund. Allgood sued the Coblentzes, the Fund, and ABPA, but ABPA was later dismissed from the action.

The lease agreement between the Coblentzes and the Fund required the Coblentzes to maintain the stairway. It also required the Fund to name the Coblentzes as insureds on its liability insurance policy, which the Fund failed to do. The Coblentzes filed a cross-claim against the Fund. The dispute was submitted to arbitration, and the arbitrators ruled for the Fund. The district court confirmed the arbitration award and eventually dismissed the Coblentzes' cross-claim and granted summary judgment for the Fund against Allgood.

We conclude that the district court erred in dismissing the Coblentzes' cross-claim but properly granted summary judgment against Allgood.

FACTS

On November 17, 1989, appellant Allgood fell on an external stairway at the office building where she worked. The heel of her shoe got stuck in a crack in a concrete step, causing her to fall and sustain injuries. Appellants Coblentzes owned this building. Respondent Fund leased the office space in the building from the Coblentzes at that time, and ABPA subleased the space from the Fund and occupied the premises at the time of the accident. Allgood sued the Coblentzes, the Fund, and ABPA. The parties later stipulated to dismissal of the cause of action as to ABPA.

The Fund retained ABPA to perform certain administrative services for it. An affidavit filed by the Fund's counsel with the district court stated: the Fund is a multiemployer employee welfare benefit plan governed by ERISA; ABPA contracted with the Fund to maintain lists of eligible participants and to receive and process claims; and ABPA is an independent contractor, not an agent of the Fund.

The Coblentzes and the Fund were successors in interest to a lease agreement, which set forth their respective obligations as landlord and tenant. The agreement required the tenant to maintain the interior of the premises and the landlord to maintain the exterior of the building and common areas such as stairways, elevators, sidewalks, and parking areas. The landlord retained the right to control access to sidewalks, lobbies, passages, elevators and stairways.

Section 11(b) of the lease agreement stated:

The Tenant shall maintain throughout the Term, at the Tenant's expense, insurance against loss or liability in connection with bodily injury, death, property damage and destruction in or upon the Premises or the remainder of the Property, and arising out of the use of all or any portion of the same by the Tenant or its agents, employees, officers, invitees, visitors and guests, under policies of general public liability insurance having [certain limits]. Such policies shall name the Landlord and the Tenant ... as the insured parties....

Section 14 stated:

(a) The Landlord shall not be liable for any damage or injury to any person or property of the Tenant, of the Tenant's employees, agents, guests or invitees or of any other person, by reason of the Tenant's occupancy or use of the Premises or of the remainder of the Property, or because of fire, flood, windstorm, acts of God or any other cause.

(b) The Tenant shall be responsible for, and shall indemnify and hold harmless the Landlord against and from, any and all liability arising out of any injury or damage to the Tenant or any other person, or to any property, either (i) upon the Premises, or (ii) elsewhere upon the Tract (if such injury or damage shall occur elsewhere upon the Tract in the course of the use thereof by the Tenant), caused by any fire, breakage, leakage, collapse or other event, caused by or resulting from the negligent or intentionally tortious act or omission of the Tenant or its agents, officers, invitees, visitors or guests, or from the Tenant's breach of any covenant herein.

The Fund failed to name the Coblentzes as insureds on its liability insurance policy. The Coblentzes tendered their defense of Allgood's suit to the Fund, which refused to accept it. The Coblentzes filed a cross-claim against the Fund, alleging that the Fund had breached the lease agreement by failing to name them as insureds. They sought indemnification and/or contribution from the Fund. The Coblentzes and the Fund agreed to arbitrate the issue of their liability to Allgood. The arbitration agreement provided that the arbitration was to be conducted according to Nevada law and that any appeal from the decision was to be pursued under NRS Chapter 38. Absent an appeal, the arbitrators' decision was to be binding.

Evidence was presented to two arbitrators, who ruled in favor of the Fund on February 28, 1994. Employing the language of the lease, the arbitrators found that Allgood's accident did not occur upon the leased premises but elsewhere upon the tract because the stairway was on the exterior of the building. Quoting Section 14(b) of the lease, they also found that the accident was not " 'caused by any fire, breakage, leakage, collapse or other event, caused by or resulting from the negligent or intentionally tortious act or omission of [the Fund] or its agents, officers, invitees, visitors or guests' " or from the Fund's breach of any covenant. The arbitrators made the following legal conclusions. The lease provisions had to be read together and consistently with one another if possible. Under the lease the Coblentzes retained control of and had a duty to maintain the exterior of the building, including the stairway, and assumed the risk for any injuries occurring there. The Fund did not have and never assumed any duty to maintain the stairway. The Fund's obligation to obtain insurance coverage naming the Coblentzes as insureds extended only to the Fund's use of the premises, and the Fund had no obligation to insure the Coblentzes against the liability for injury occurring in areas remaining in the control of the Coblentzes. The Fund had no duty "to indemnify the Coblentzes for personal injuries allegedly caused by negligent maintenance" on the stairway or to assume their defense in this case.

The Fund moved to confirm the arbitration award on March 16, 1994. At the same time, it moved to recalendar its motion for summary judgment against Allgood, earlier denied, and moved to dismiss the Coblentzes' cross-claim. The Coblentzes opposed these motions on March 21. They stated that they wished to proceed to trial because they believed the arbitrators had erred. They moved to vacate the award on March 24.

The district court confirmed the arbitration award on March 31, 1994. It concluded that the Coblentzes were bound by the arbitrators' decision even if it was erroneous, but that it was not erroneous. The court found that the Coblentzes had a duty to maintain the staircase and assumed the risk for any injuries occurring there. It stated that the Fund "owed no duty to the plaintiff, and is not responsible to indemnify or otherwise respond to any judgment against the Coblentzes. Any relitigation of [the Fund's] liability in this case is res judicata." The court did not address the insurance issue.

On May 17, 1994, the district court granted summary judgment in favor of the Fund against Allgood and dismissed the Coblentzes' cross-claim against the Fund. It found that the Coblentzes controlled the stairway, that the Fund did not occupy the premises on the date of Allgood's accident, and that neither the Fund nor the sublessee ABPA created the condition which allegedly caused the accident. It concluded that because the Fund had no control of the stairway it could have no liability to Allgood.

DISCUSSION

The district court looked beyond the pleadings, most obviously to the arbitration award, in granting the Fund's motion to dismiss the Coblentzes' cross-claim. "If ... matters outside the pleading are presented to and not excluded by the court, [a motion to dismiss under NRCP 12(b)(5) ] shall be treated as one for summary judgment and disposed of as provided in Rule 56." NRCP 12(b). When a district court errs "in failing to expressly consider respondent's motion as one for summary judgment," this court is not required to reverse, but "simply review[s] the dismissal order as if it were a summary judgment." Thompson v. City of North Las Vegas, 108 Nev. 435, 438-39, 833 P.2d 1132, 1134 (1992).

A district court shall grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." NRCP 56(c). "A litigant has the right to trial whenever the slightest doubt as to remaining issues of fact exists." Roy v. Lancaster, 107 Nev. 460, 462, 814 P.2d 75, 76 (1991).

I. Whether the district court erred in dismissing the Coblentzes' cross-claim.

The...