Cozzi v. Owens Corning Fiber Glass Corp.

• Decision Date: 27 September 1960
• Docket Number: No. A--569,A--569
• Citation: 63 N.J.Super. 117,164 A.2d 69
• Parties: George COZZI, Plaintiff, v. OWENS CORNING FIBER GLASS CORP., Defendant-Third-Party Plaintiff-Respondent, v. PANGIA CONSTRUCTION COMPANY, Third-Party Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 117

63 N.J.Super. 117

164 A.2d 69

George COZZI, Plaintiff, v. OWENS CORNING FIBER GLASS CORP., Defendant-Third-Party Plaintiff-Respondent, v. PANGIA CONSTRUCTION COMPANY, Third-Party Defendant-Appellant.

No. A--569.

Superior Court of New Jersey,

Appellate Division.

Argued Sept. 19, 1960.

Decided Sept. 27, 1960.

Norman Heine, Camden, for appellant, Pangia Const. Co. (Victor Taylor, Camden, on the brief).

Arthur Montano, Camden, for respondent, Owens Corning Fiber Glass Corp. (Kisselman, Devine, Deighan & Montano, attorneys; Michael P. King, Camden, on the brief).

Before Judges GOLDMANN, FREUND and KILKENNY.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Third-party defendant Pangia Construction Company (Pangia) appeals from judgment of $1,000 and costs rendered by the county district court in favor of third-party plaintiff Owens Corning Fiber Glass Corp. (Owens Corning) on its motion for summary judgment. The original suit, by plaintiff Cozzi against Owens Corning, was based on the latter's negligence and was uncontested. The third-party judgment was predicated on an indemnity clause whose construction forms the sole issue of this appeal. The summary judgment was based upon the following stipulation of facts between Owens Corning and Pangia:

On June 5, 1958 Pangia entered into a contract with Owens Corning to pave its yard and parking area. The terms of the contract appear on a form prepared by Owens Corning entitled 'Purchase Order Services.' On the reverse side of the form, entitled 'Terms and Conditions for Purchase Order Services,' appears the following indemnification clause:

'Article 20. Indemnification of Owner: The Contractor hereby agrees to save and indemnify and keep harmless the Owner against all liability claims and judgments or demands for damages arising from accidents to persons or property occasioned by the Contractor, his agents or employees, and against all claims or demands for damages arising from accidents to the Contractor, his agents or employees, whether occasioned by said Contractor or his employees or by Owner or his employees or any other person or persons and the said Contractor will defend any and all suits that may be brought against the Owner on account of any such accidents and will make good to, and reimburse, the Owner for any expenditures that said Owner may make by reason of such accidents.'

Cozzi, a tractor operator employed by Pangia, was injured while working in the area alongside the building occupied by Owens Corning. His injury was caused when hot waste Kaylo, commonly called 'sury,' came through a window of the second floor of the building and spilled on him. The sury was caused to splash out of the window when the holes in the lid of the pre-heater, the machine in which it was contained, became clogged. Because the holes were clogged, the steam pressure which usually escapes from them was trapped. The additional pressure thus built up forced the sury out the window and onto Cozzi.

The premises in which the machine was used, and the machine itself, were at all times in the exclusive control and possession of Owens Corning and its employees. The work performed there by Owens Corning was independent of and totally unrelated to the work to be performed by Pangia. Cozzi, the injured employee, had a right to be in the area alongside the building at the time of his injury, and his work, like that of Pangia's other employees, was independent of and totally unrelated to the work performed by Owens Corning or its employees.

Cozzi instituted suit in the county district court against Owens Corning, alleging that it negligently caused his injury. Owens Corning then filed a third-party complaint demanding judgment against Pangia for reimbursement of all or any part of such sum as might be found in favor of Cozzi against Owens Corning. Cozzi recovered $1,000 and costs against the latter.

The trial court concluded that the indemnification clause quoted above should be construed as extending to accidents like the one which resulted in injury to Cozzi--an accident occasioned by the sole negligence of the indemnitee Owens Corning, owner of the premises, and resulting from an activity entirely under the control of Owens Corning and unrelated to the work being performed by Pangia, the indemnitor. Pangia contends that such a construction was error and the motion for summary judgment should have been denied because the indemnification clause does not evidence an intention on the part of the contracting parties to cover an accident such as occurred here. The position of Owens Corning is that the clause is entirely clear and unambiguous, was purposely written broadly, and should be construed accordingly.

A contract of indemnity is to be interpreted in accordance with the rules governing the construction of contracts generally. The fundamental rule in construing contracts calls for the ascertainment of the intention of the parties in the light not only of the language used but also of the surrounding circumstances and the objects sought to be attained by them under their agreement. Stern v. Larocca, 49 N.J.Super. 496, 501, 140 A.2d 403 (App.Div.1958). As stated in George M. Brewster & Son v. Catalytic Const. Co., 17 N.J. 20, 32, 109 A.2d 805 (1954), in the case of an integrated contract the judicial quest 'is for the reasonably certain meaning of the language used, taken as an entirety, considering the situation of the parties, the attendant circumstances, the operative usages and practices, and the objects the parties were striving to achieve. * * * (T)he chosen words and phrases are to be realistically assessed, in relation to the context and the obvious general purpose of the compact, for the meaning that is reasonably clear, such as is within the reasonable understanding of the symbols of expression.'

The general rule appears to be that where the act of negligence of the indemnitee is the sole cause of the accident, he is not entitled to recover against the indemnitor unless an intent to indemnify is unequivocably spelled out in the contract, the surrounding circumstances, and the objects to be attained by the parties. See Annotation, 175 A.L.R. 8, §§ 18 and 19, pp. 29--34 (1948); George M. Brewster & Son v. Catalytic Const. Co., above; Cross v. Robert E. Lamb, Inc., 60 N.J.Super. 53, 158 A.2d 359 (App.Div.1960 decided under Pennsylvania law); Stern v. Larocca, above, which reviewed the cases; Longi v. Raymond-Commerce Corp., 34 N.J.Super. 593, 113 A.2d 69 (App.Div.1955). An examination of the cases denying indemnification reveals that the clauses there involved were more restrictive in expression than the one here under consideration. For example, in Brewster the clause read:

'It is understood and agreed that you indemnify us against all loss, damage, expense and penalty arising from any action on account of personal injury or damage to property occasioned by the operation and handling of this equipment during the rental period, or any extension thereof.'

The clause in Stern was:

'* * * The Contractor shall bear all loss or damage from accidents which may occur to any person or persons, by or on account of the prosecution of the work, until possession is taken by the owner. * * *'

And in Longi the indemnity provision of the lease obligated the tenant to make all repairs to the sidewalks adjacent to the premises, and to indemnify and hold harmless the municipality from any and all claims arising out of the lessee's conduct and management of the premises and adjacent sidewalks.

Under the indemnification clause in this case Pangia specifically agreed to indemnify and save Owens Corning harmless against all claims or demands for damages 'arising from accidents to the Contractor (Pangia), his agents or employees, whether occasioned by said Contractor or his employees or by Owner or his employees or any other person or persons * * *.' The clause is clear enough and broad enough to leave little doubt that it covers the accident suffered by Cozzi. The parties' expression of their intention is unambiguous.

True, a clause like 'on account of any claim, demand or suit brought against the Contractor' has generally been interpreted strictly so as not to include damages resulting from the indemnitee's negligence. Annotation, 175 A.L.R. 8, § 68, p. 144 et seq. But the broad language of the cases so holding does not include reference to accidents caused or occasioned by the owner. That an indemnification clause fails to refer to the negligence of the indemnitee should not be controlling. This is merely evidence of the fact that the parties contract without regard to fault, but with regard to liability. Had the parties added the word 'negligence' in the clause, dispute might then arise as to whether liability could be imposed without fault, or even as to whether there was an intention to include injuries occasioned by the indemnitee's sole active negligence. Surely it is not necessary that parties incorporate into the language of their agreement all the specific possibilities through which the indemnitee-owner might cause an accident--by sole negligence, concurrent negligence, active sole negligence, passive concurrent negligence, etc.

Although the clause in question does not specifically refer to the sole active negligence of Owens Corning, it is manifestly broader than that and does show an express intention to encompass the sole active negligence of the owner as well. Reading the clear and express language of the present clause realistically and logically, we find that Owens Corning sought and obtained in Article 20 indemnification under two broad contingencies: (1) accidents occasioned by Pangia, its agents or employees, to any person or property; and (2) accidents resulting in damage to Pangia, its agents or employees, no matter by whom occasioned.

At oral argument appellant posed the question of whether Owens Corning could seek indemnification...