Cochran v. Gehrke, Inc.

Decision Date24 November 2003
Docket NumberNo. C 01-161-MWB.,C 01-161-MWB.
PartiesShawn COCHRAN, Plaintiff, v. GEHRKE, INC., and National Tank Corporation, Defendants, and Gehrke, Inc., Cross-Claim Plaintiff, v. National Tank Corporation, Cross-Claim Defendant, and National Tank Corporation, Cross-Claim Plaintiff, v. Gehrke, Inc., Cross-Claim Defendant.
CourtU.S. District Court — Northern District of Iowa

Marc S. Harding, Marc S. Harding PC, Des Moines, IA, for Plaintiff.

Donald J. Pavelka, Jr., Thomas M. Braddy, Locher, Cellilli, Pavelka & Dostal, LLC, Omaha, NE, Marc Thomas Beltrame, Megan M. Antenucci, Whitfield &amp Eddy, PLC, Des Moines, IA, John A. Templer, Jr., Pingel & Templer, PC, West Des Moines, IA, for Defendants/Cross Claimants/Cross Defendants/Third-Party Plaintiff.

Kent Alan Gummert, Gaudineer & Comito, LLP, West Des Moines, IA, for Third-Party Defendant.

MEMORANDUM OPINION AND ORDER REGARDING MOTION BY GEHRKE, INC., FOR PARTIAL SUMMARY JUDGMENT ON ITS INDEMNITY CROSS-CLAIM AGAINST NATIONAL TANK CORPORATION

BENNETT, Chief Judge.

                TABLE OF CONTENTS
                I. INTRODUCTION ........................................................988
                    A. Factual Background ..............................................988
                    B. Procedural Background ...........................................990
                II. LEGAL ANALYSIS .....................................................990
                    A. Standards For Summary Judgment ..................................990
                    B. Arguments Of The Parties ........................................992
                       1. Gehrke's opening argument ....................................992
                       2. National Tank's resistance ...................................992
                       3. Gehrke's reply ...............................................993
                    C. Principles Of Iowa Indemnity Law ................................993
                       1. Contractual indemnity ........................................993
                       2. Indemnity for the indemnitee's own negligence ................994
                       3. Roles of court and jury ......................................995
                    D. Interpretation And Construction Of The Indemnity Agreement ......996
                       1. Entities for whose acts indemnity is promised ................997
                       2. Scope of the area in which indemnity is available ...........1000
                       3. Summary .....................................................1001
                    E. National Tank's Assertion Of Factual Disputes ..................1002
                III. CONCLUSION .......................................................1002
                

In a previous ruling in this lawsuit, which arises from an accident on a construction project in which general, sub-, and sub-subcontractors were involved, this court observed that it was almost inevitable that issues of indemnity and contribution would arise. Indeed, the court has yet to address directly in this case the question of who is or is not liable to the injured plaintiff. Instead, the court has previously addressed cross-claims and third-party claims for indemnity and contribution by a sub-contractor against the general contractor and a sub-subcontractor. See Cochran v. Gehrke Constr., 235 F.Supp.2d 991 (N.D.Iowa 2002). Now before the court is the general contractor's motion for partial summary judgment on its own indemnity cross-claim against a subcontractor. Consequently, the court must once again probe Iowa's sometimes arcane rules of indemnity.

I. INTRODUCTION
A. Factual Background

Whether or not a party is entitled to summary judgment ordinarily turns on whether or not there are genuine issues of material fact for trial. See, e.g., Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir.1996). However, a case involving only questions of law, "is particularly appropriate for summary judgment." TeamBank, N.A. v. McClure, 279 F.3d 614, 617 (8th Cir.2002) (citing Adams v. Boy Scouts of America-Chickasaw Council, 271 F.3d 769, 775 (8th Cir.2001)). Here, Gehrke, Inc., the movant for partial summary judgment, contends that the issues presented are essentially legal, while National Tank Corporation, the party resisting the motion, contends that various genuine issues of material fact preclude summary judgment on any question presented. The court need not decide immediately which parties' view of the case is correct. Rather, the court will content itself, for now, with a statement of sufficient of the facts, both disputed and undisputed, to put in context the parties' arguments for and against partial summary judgment on Gehrke's indemnity claim against National Tank, without attempting a comprehensive review of the entire record.

In its previous ruling, the court observed that the factual background to this lawsuit is perhaps deceptively simple. The claims among the parties arise from a construction accident on July 20, 2000, during the erection and refurbishing of a water tower in New Providence, Iowa. The City of New Providence had hired Gehrke, Inc., as the general contractor for the project, and Gehrke, in turn, subcontracted with National Tank Corporation to perform some of the construction work. National Tank, in turn, hired Eagle Grove Crane Service to set up and operate the crane used in connection with the water tower project. Shawn Cochran was, in turn, an employee of Eagle Grove. Cochran alleges that, while the water tank was being placed on the tower, "[t]he ground beneath the crane slowly sank, causing instability that [Cochran] was powerless to control," and "[t]he crane toppled, dropping [Cochran] approximately 140 feet to the ground below," with the result that Cochran was "critically injured." Plaintiff's Complaint at ¶¶ 10-12.

What must now be added to this picture is some examination of the contractual relationship between Gehrke, the general contractor, and National Tank, the subcontractor, and still more specifically, the indemnity provisions in their contract. On January 31, 2000, Gehrke and National Tank entered into a "Subcontract Agreement." See Gehrke's Appendix at 72-73. Section 2 of that agreement describes the work to be performed by National Tank as preparing and erecting the tank, sand blasting and painting the tank, modifying the control system, sand blasting and painting an existing tank, and furnishing new 30" fill pipe. Id. at 72. Section 8 of that agreement provides for indemnity as follows:

The Subcontractor agrees to indemnify and save harmless the Contractor from any and all loss or damage (including, without limiting the generality of the foregoing, legal fees, and disbursements paid or incurred by the Contractor to enforce the provisions of this paragraph), occasioned wholly or in part by any negligent act or omission of the subcontractor or that of anyone directly or indirectly employed by them or performing the work of this Subcontract under the direction of the Subcontractor or anyone for whose acts any of them may be liable in carrying out the provisions of the general contract and of this Subcontract regardless of whether or not it is caused in part by a party indemnified hereunder.

Id.

Gehrke alleges, and National Tank does not dispute, that Howard McDole, the owner of National Tank, entered into a subcontract with Eagle Grove to perform crane work on the project and that, on the day of the accident giving rise to this litigation, McDole explained to Steve Campbell of Eagle Grove what was going on and what they had to do. The parties also agree that the accident occurred during the completion of the water main improvement project in New Providence, Iowa, and during the performance of the subcontract between Gehrke and National Tank. However, they dispute precisely how much control or direction National Tank, in the person of McDole or other representatives, was exercising over the way that Eagle Grove was performing its subcontract with National Tank. Gehrke contends that McDole was present at the time of the accident, watching the tower being lifted, to make sure that nothing was going to "hang up" or "snag," and that National Tank employees were communicating with an Eagle Grove employee on the ground directing the placement of the water tank. However, National Tank denies these allegations. Instead, National Tank contends that McDole left the operation of the crane to Eagle Grove personnel, and further contends that the failure of Eagle Grove personnel to place cribbing properly under the outriggers of the crane was the sole cause of the collapse of the crane, which Gehrke denies.

B. Procedural Background

On November 23, 2001, Shawn Cochran initiated this action by filing a Complaint against defendants Gehrke, National Tank, and another subcontractor since dismissed from the case, in which Cochran alleged that the negligence of the defendants caused his injuries. Defendant Gehrke answered the Complaint on February 1, 2002, and defendant National Tank answered on February 4, 2002. Cochran's Complaint, however, is not the subject of the motion for partial summary judgment presently before the court.

Instead, the motion presently before the court involves Gehrke's cross-claim against National Tank for indemnification for damages to Cochran pursuant to the Subcontract Agreement between National Tank and Gehrke. That cross-claim was introduced into this litigation in Gehrke's amended answer and cross-claim on May 22, 2002. National Tank answered Gehrke's cross-claim on June 12, 2002. Although National Tank also asserted a cross-claim for indemnification against Gehrke, that cross-claim was dismissed on Gehrke's motion. See Cochran v. Gehrke Constr., 235 F.Supp.2d 991 (N.D.Iowa 2002).

On September 12, 2003, Gehrke filed the motion for partial summary judgment presently before the court (docket no. 53), which seeks summary judgment on Gehrke's cross-claim for indemnity against National Tank. National Tank resisted the motion on October 8, 2003 (docket no. 55), and Gehrke filed a reply in further support of its motion on October 16, 2003 (docket no. 56). Neither party requested oral...

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