Dixon v. Certainteed Corp.
| Decision Date | 08 October 1996 |
| Docket Number | Civil Action No. 94-2310-GTV. |
| Citation | 944 F.Supp. 1501 |
| Parties | Barney DIXON, Plaintiff, v. CERTAINTEED CORPORATION and Precision Constructors, Inc., Defendants and Third-Party Plaintiffs, and INSURANCE SOLUTIONS, INC. and Brookville Insurance Agency, Inc., Defendants, v. HENRY F. TEICHMANN, INC., Third-Party Defendant. |
| Court | U.S. District Court — District of Kansas |
Paul E. Serrano, Jr., Robert L. Dameron, Blake & Uhlig, P.A., Kansas City, KS, Henri J. Watson, Russell S. Dameron, Watson & Dameron, and Brett A. Davis, Larson & Larson, P.C., Kansas City, MO, for Barney Dixon.
Roger W. Warren, Kathryn A. Regier, Blackwell, Sanders, Matheny, Weary & Lombardi, Overland Park, KS, Brett A. Davis, Larson & Larson, P.C., Kansas City, MO, for the Certainteed Corporation.
Bernard T. Schmitt, Harris, McCausland & Schmitt, P.C., Kansas City, MO, for Precision Constructors, Inc.
Jack L. Fortini, Fortini & Magruder, Kansas City, MO, David E. Larson, Westwood, KS, Brett A. Davis, Larson & Larson, P.C., Kansas City, MO, for Insurance Solutions.
David E. Larson, Westwood and Brett A. Davis, Larson & Larson, P.C., Kansas City, MO, for Brookville Insurance Agency, Inc.
Joseph M. Backer, Kurlbaum, Stoll, Seaman, Reefer, Suter & Mustoe, P.C., and Thomas R. Buchanan, McDowell, Rice, Smith & Gaar, Kansas City, MO, for Henry F. Teichmann, Inc.
This case comes before the court on the following motions:
Defendant and Third-Party Plaintiff CertainTeed Corporation's ("CertainTeed") motion for summary judgment (Doc. 129) on its claims against Third-Party Defendant Henry F. Teichmann, Inc. ("Teichmann");
Third-Party Defendant Teichmann's crossmotion for summary judgment (Doc. 132) on Third-Party Plaintiff CertainTeed's claims against it; and
Third-Party Defendant Teichmann's motion for summary judgment (Doc. 134) on Third-Party Plaintiff Precision Constructors, Inc.,'s ("Precision") claims against it.
For the reasons set forth below, CertainTeed's motion is granted in part and denied in part, and Teichmann's motions against CertainTeed and Precision are denied.
Plaintiff, Barney Dixon ("Dixon"), brought this negligence action against defendants CertainTeed, Precision, Insurance Solutions, Inc. ("Solutions"), and Brookville Insurance Agency, Inc. ("Brookville"). Dixon claims that he leaned on a negligently maintained guard rail located on the mezzanine level of a large furnace at CertainTeed's plant that gave way, causing him to fall 10-15 feet to the ground. Dixon alleges that he suffered permanent injuries as a result of this fall. Dixon alleges that at the time of his accident, Teichmann was his employer. At the time of the injury Teichmann was an independent contractor performing work for CertainTeed, and Dixon was working for Teichmann on CertainTeed's premises. Precision was the construction manager responsible for coordinating Teichmann's activities at CertainTeed's facility.
CertainTeed and Precision impleaded Teichmann as a third-party defendant. In its third-party complaint, CertainTeed alleges that Teichmann breached the construction services contract ("construction contract") between CertainTeed and Teichmann, and that Teichmann must defend and indemnify CertainTeed in this action brought by Dixon. Precision alleges in its third-party complaint against Teichmann that the indemnification clause in the construction contract between CertainTeed and Teichmann also requires Teichmann to defend and indemnify Precision in this lawsuit.
Summary judgment is appropriate only "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." Fed.R.Civ.P. 56(c). The court must examine the factual record and reasonable inferences therefrom in a light most favorable to the party opposing summary judgment. Applied Genetics Int'l Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990).
The moving party has the initial burden of showing "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once the moving party meets this burden, the burden shifts to the non-moving party to identify specific facts that show the existence of a genuine issue of material fact. Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986).
The legal standard does not change if the parties have filed cross-motions for summary judgment. Each party has the burden of establishing the lack of a genuine issue of material fact that would entitle it to judgment as a matter of law. Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir.1968). The court will not automatically decide the case at the summary judgment stage merely because the parties have filed cross-motions for summary judgment. Id.
The following facts from the parties' cross-motions for summary judgment are uncontroverted, or if controverted, are construed in a light most favorable to the nonmoving party. First Affiliated, 912 F.2d at 1241.
Teichmann is a construction contractor that specializes in rebuilding glass furnaces. CertainTeed is a manufacturer of fiberglass insulation that utilizes glass furnaces in its manufacturing process. In May 1994, Teichmann entered into a contract with CertainTeed to complete a construction project at CertainTeed's manufacturing plant. Teichmann enters into between ten and fifteen of these type of construction contracts each year.
CertainTeed contracted with Precision to be the construction manager for the construction project at CertainTeed's facility. Precision was responsible for coordinating and directing the activities of all contractors, including Teichmann, on the construction project.
The construction contract between CertainTeed and Teichmann contained five indemnification clauses. Two of those clauses are relevant to the parties' current motions. Article 10 is the construction contract's general indemnification provision, and it requires Teichmann to hold harmless CertainTeed and its agents from any claims or losses arising out of Teichmann's work at CertainTeed's facility regardless of whether CertainTeed's negligence caused those losses or claims. Article 5.10 is the "Health and Safety" clause of the contract, and it requires Teichmann to take all necessary precautions not to jeopardize the health and/or safety of personnel or property involved in the construction project at CertainTeed's facility. This section also requires Teichmann to indemnify CertainTeed in the event that Teichmann violates the section's requirements and causes CertainTeed a loss.
Barney Dixon, a Teichmann laborer, sustained injuries in a fall from a platform at CertainTeed's facility. Dixon brought this action to recover for those injuries. He claims that his injuries are the result of the negligence of CertainTeed and Precision in failing to exercise reasonable care in keeping CertainTeed's premises in a reasonably safe condition.
The court first must determine which state's substantive law governs. In a diversity of citizenship action such as this, the court must apply the choice-of-law rules of the state in which it sits, Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941), including the rules on whether a "contractual choice-of-law provision is enforceable." Equifax Servs., Inc. v. Hitz, 905 F.2d 1355, 1360 (10th Cir.1990). Federal courts in Kansas routinely enforce the parties' contractual choice-of-law provisions under Kansas choice-of-law rules. Id. Section 20.12 of the parties' construction contract provides that the law of the state where the "project" is located shall govern. The "project" was the construction work that Teichmann performed at CertainTeed's facility, which is located in Kansas. The court concludes that Kansas contract law governs.
CertainTeed claims that Teichmann breached the construction contract by failing to secure the insurance required under the contract. Specifically, CertainTeed alleges that Teichmann did not obtain an endorsement to Teichmann's general commercial liability policy for the construction project naming CertainTeed as an additional insured. The court disagrees.
The court previously addressed this issue in the related action of CertainTeed v. Employers Insurance of Wausau, 939 F.Supp. 826 (D.Kan.1996). In that declaratory judgment action, CertainTeed sought the court's determination that CertainTeed was an additional insured entitled to insurance coverage under Teichmann's general commercial liability insurance policy. In its order of September 6, 1996, the court granted CertainTeed's motion for summary judgment. The court held that CertainTeed was an additional insured under Teichmann's insurance policy with Wausau. Consequently, the court concluded that Wausau had a duty to defend and indemnify CertainTeed in this action.
The court concludes that its order of September 6, 1996, controls the disposition of CertainTeed's breach of contract claim against Teichmann. Based on the court's previous ruling that CertainTeed is an additional insured under Teichmann's insurance policy, the court denies as moot CertainTeed's motion for summary judgment on this issue.
As noted above, the construction contract between...
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