EMJ Corp. v. Contract Steel Constr., Inc.

• Decision Date: 21 February 2012
• Docket Number: No. 2010–CA–01076–COA.,2010–CA–01076–COA.
• Citation: 81 So.3d 295
• Parties: EMJ CORPORATION, Appellant v. CONTRACT STEEL CONSTRUCTION, INC., Appellee.
• Court: Mississippi Court of Appeals

81 So.3d 295

EMJ CORPORATION, Appellant

v.CONTRACT STEEL CONSTRUCTION, INC., Appellee.

No. 2010–CA–01076–COA.

Court of Appeals of Mississippi.

Feb. 21, 2012.

Paul P. Blake, Ridgeland, Ronald L. Harper, Charles R. Patrick, attorneys for appellant.

Edward I. Curry, III, Robert A. Talley, attorneys for appellee.

Before GRIFFIS, P.J., BARNES and ISHEE, JJ.

ISHEE, J., for the Court:

¶ 1. In January 2005, EMJ Corporation (EMJ) entered into an agreement with Contract Steel Construction Inc. (CSC) to serve as a subcontractor on a construction project in DeSoto County, Mississippi, on which EMJ was serving as the general contractor. Part of CSC's duties included the installation of a roof ladder, otherwise known as a ships ladder. The ladder was manufactured by a third party, delivered to the job site, and installed by CSC in April 2005. An authorized EMJ representative inspected the ladder and approved installation. Approximately two weeks later, John Meeker was injured after falling down the ladder. Meeker filed suit in the DeSoto County Circuit Court naming EMJ and CSC, among others, as defendants. EMJ then filed a countersuit against CSC claiming CSC breached its contract by failing to install non-slip surfaces on the ladder's steps, thereby causing Meeker's fall. In December 2009, the circuit court granted CSC's motion for summary judgment after concluding that CSC's contract was ambiguous and that CSC did not have a duty to install the non-slip surfaces. EMJ appeals. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. EMJ was hired by J.C. Penny to serve as the general contractor on the construction of a new J.C. Penny store being built in Southaven, Mississippi. In 2005, EMJ contracted with CSC to provide “[a]ll steel erection work.” Included in the listed scope of CSC's work was “Section 05500” which referenced metal fabrications and stated CSC would “[p]rovide non-slip surface on the top of each rung [of ladders,] either by coating the rung with aluminum oxide granules set in epoxy resin adhesive, or by using a type of manufactured run which is filled with aluminum oxide grout.”

¶ 3. Nonetheless, CSC was only charged with installing ladders that were made by third parties. The contract noted that “[m]aterials [would be] provided by others,” and it specified CSC was only to complete “[i]nstallation of roof ladder.” A separate subcontractor was charged with designing the ladder; yet another subcontractor, Harrell's Metal Works (HMW), was hired to fabricate the ladder according to the ladder's drawings. HMW's agreement with EMJ also listed “Section 05500” within the scope of work and charged HMW with completing the same task of applying non-slip surfaces to ladder rungs.

¶ 4. On or about April 15, 2005, CSC was informed that the ladder in question had been received at the job site. CSC sent Curits Walden, one of its employees, to install the ladder. Walden “tack welded,” or temporarily welded, the ladder to the roof and sought approval from EMJ's project manager, Randy Hartline, for final installation. Walden informed Hartline that the ladder was too short for the space and that the rungs of the ladder were not perfectly parallel to the floor. The incorrect length of the ladder and the imperfections in the rungs were unimportant to Hartline and he asked Walden to complete installation. Walden complied and welded the ladder to the wall. He then waited while EMJ's employees poured a concrete cap over the base of the floor underneath the ladder and finalized installation by welding the bottom of the ladder to the concrete, anchoring the ladder to the ground. The next day, Walden returned for EMJ's final inspection. Hartline inspected the ladder, approved installation, and Walden left the job site.

¶ 5. Approximately two weeks later, another subcontractor was called by EMJ to inspect the roof. Meeker, an employee of the subcontractor, was sent to complete the inspection and used the ladder at issue to access the roof. After climbing up the ladder without incident, he began to descend the ladder and fell, causing serious bodily injury. Upon learning of Meeker's fall, EMJ asked HMW to apply the non-slip surfaces on the ladder's rungs. EMJ also notified HMW there would be deductions made from HMW's final payment to compensate for the lack of non-slip surfaces. CSC was never asked to return to the job site and install non-slip surfaces on the ladder's rungs, nor were CSC's payments ever reduced or off-set. Trey Hall, an EMJ manager, later explained under oath that EMJ never hired CSC to apply the non-slip surfaces on ladder rungs and was never asked to do so either before or after Meeker's fall.

¶ 6. After the fall, Meeker was diagnosed as paraplegic and filed suit in the circuit court in 2008 against EMJ, CSC, HMW, and several others claiming the lack of non-slip surfaces on the ladder's rungs caused his injuries. Shortly thereafter, EMJ filed a countersuit against CSC asserting it was CSC's contractual duty to install the non-slip surface, and CSC had breached its duty. HMW was voluntarily dismissed with prejudice, as were several other defendants. Another defendant was granted summary judgment, leaving EMJ and CSC as the only remaining defendants in the case.

¶ 7. CSC filed a motion for summary judgment in October 2009 as to EMJ's counterclaim and Meeker's claim. Therein, CSC claimed the existence of “Section 05500” in HMW's contract rendered the contracts ambiguous, and testimony from EMJ's project manager and CSC's representative clarified that CSC was never expected to apply the non-slip surfaces on the ladder's rungs. The circuit court entered an order in December 2009 granting CSC summary judgment under Mississippi Rule of Civil Procedure 54(b). In the order, the circuit court referenced the presence of “Section 05500” in the two contracts and noted that two subcontractors could not have both been charged with the same task; thus, CSC's contract was ambiguous. Furthermore, testimony proved EMJ never expected CSC to apply the non-slip surfaces on the ladder's rungs despite the language in CSC's contract. As such, CSC was dismissed from Meeker's suit as well as EMJ's countersuit.

¶ 8. EMJ appeals claiming that material facts remain regarding CSC's liability to Meeker and that the circuit court erred in its grant of summary judgment to CSC. We affirm the circuit court's judgment.

DISCUSSION

¶ 9. The Mississippi Supreme Court has held that an appellate court “reviews a trial court's grant or denial of a motion for summary judgment or a motion to dismiss under a de novo standard.” Copiah County v. Oliver, 51 So.3d 205, 207 (¶ 7) (Miss.2011) (citation and italics omitted). Summary judgment is proper “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.” Palmer v. Anderson Infirmary Benevolent Ass'n, 656 So.2d 790, 794 (Miss.1995) (quoting M.R.C.P. 56(c)). Although this Court must view the evidence in the light most favorable to the non-moving party, the party opposing the motion “may not rest upon the mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing that there is a genuine issue for trial.”...