Epley v. S. Patti Construction Company

• Decision Date: 07 April 1964
• Docket Number: Civ. No. 877.
• Citation: 228 F. Supp. 1
• Court: U.S. District Court — Northern District of Iowa
• Parties: Betty Lou EPLEY, Executrix of the Estate of Harvey H. Epley, Deceased, Plaintiff, v. S. PATTI CONSTRUCTION COMPANY, Defendant and Third-Party Plaintiff, v. CARSTENS PLUMBING & HEATING COMPANY and Florence & Hartzell, Inc., Third-Party Defendants.

228 F. Supp. 1

Betty Lou EPLEY, Executrix of the Estate of Harvey H. Epley, Deceased, Plaintiff, v. S. PATTI CONSTRUCTION COMPANY, Defendant and Third-Party Plaintiff, v. CARSTENS PLUMBING & HEATING COMPANY and Florence & Hartzell, Inc., Third-Party Defendants.

Civ. No. 877.

United States District Court N. D. Iowa, Central Division.

April 7, 1964.

Donald J. Mitchell, John J. Murray, Fort Dodge, Iowa, for plaintiff.

Alan Loth, Fort Dodge, Iowa, for S. Patti Constr. Co.

William S. Burnquist, Fort Dodge, Iowa, for Carstens Plumbing & Heating Co.

Arthur H. Johnson, Fort Dodge, Iowa, Evart Mills, McPherson, Kan., for Florence & Hartzell, Inc.

HANSON, District Judge.

This Memorandum and Order will constitute a ruling upon only one facet of the above entitled case. The case in its entirety arises by reason of an injury and death of an employee in the construction of the Fort Dodge Post Office located at Fort Dodge, Iowa. S. Patti Construction Company was the general contractor, and Carstens Plumbing & Heating Company and Florence & Hartzell, Inc., were among the subcontractors on said project. The injured workman was an employee of Florence & Hartzell, Inc. The decedent is represented by the executrix of his estate, namely, Betty Lou Epley, his wife.

In the first instance, the estate of Harvey H. Epley sued S. Patti Construction Company. S. Patti Construction Company in turn sued its subcontractors, Carstens Plumbing & Heating Company and Florence & Hartzell, Inc. on a third-party complaint. Florence & Hartzell, Inc. also brought suit against Carstens Plumbing & Heating Company on behalf of the estate of Harvey H. Epley and their workmen's compensation insurance carrier.

S. Patti Construction Company has sought contractual and common law indemnity against Carstens Plumbing & Heating Company, one of its subcontractors.

On February 17, 1964, this cause came on for trial. A jury was empanelled, evidence introduced by all parties and the complaint of the plaintiff against S. Patti Construction Company and of Florence & Hartzell, Inc., cross-complainant on behalf of the plaintiff against Carstens Plumbing & Heating Company were submitted to the jury with interrogatories upon which their verdict was returned into open court. The questions of indemnity were withdrawn from the consideration of the jury by the court. The interrogatories permitted the jury either to find against S. Patti Construction Company alone, or against Carstens Plumbing & Heating Company alone, or against both based upon charges of negligence. The jury found both the general contractor, S. Patti Construction Company, and the subcontractor, Carstens Plumbing & Heating Company, guilty of negligence.

The problem now facing the court is the determination of the questions as they relate to indemnity as between S. Patti Construction Company and Carstens Plumbing & Heating Company. The jury has found that Carstens Plumbing & Heating Company and S. Patti Construction Co. were both guilty of negligence and thus are concurrent tortfeasors.

The facts as they relate to the contract of indemnity set out in Exhibit "F" and the facts necessary to the disposition of the questions of indemnity are now by reason of the foregoing trial, in the opinion of this court, without dispute. No one doubts the execution of the contract as Exhibit "F", and no one disputes its provisions. The jury has made its findings as they relate to the negligence of the parties by reason of their answers to the interrogatories based upon the instructions of the court submitted to them. The acts alleged to have caused the damage on which said verdict was based were alleged to have been caused and were caused by an act of an employee or joint employee or invitee of the subcontractor. Except as findings are later herein set out within the conclusions drawn, further findings of fact will not be made.

The court has concluded as a matter of law that S. Patti Construction Company is entitled to full indemnity from Carstens Plumbing & Heating Company both under the contract and by Iowa common law of implied indemnity.

The indemnity agreement between Patti and Carstens reads in part as follows:

9. Carstens "at all times shall supply adequate tools, appliances, and equipment, a sufficient number of properly skilled workmen and * * * materials and supplies * * * to prosecute efficiently and properly said work. (Carstens) shall * * * provide continuous supervision for such work during progress thereof at the job site."

11. (a) Carstens "agrees to protect and indemnify (Patti) against all loss, cost, damage, liability or expense which it may incur or sustain in consequence of any claim of personal injury * * * including death * * * alleged to have been caused by any act or omission of (Carstens), * * * or an agent, employee or invitee of (Carstens)."

Under Iowa law, the contract need not expressly specify that it is intended to indemnify Patti for their own negligence if the clear intent of the language is to indemnify Patti for its own negligence. Weik v. Ace Rents, 249 Iowa 510, 87 N.W.2d 314; Fire Association of Philadelphia v. Allis Chalmers Mfg. Co., 129 F.Supp. 335 (Iowa); Chicago Great Western Ry. Co. v. Farmers Produce Co., 164 F.Supp. 532 (Iowa).

There are a large number of indemnity cases when one considers the cases from all jurisdictions and there are splits of authority among the cases. If only Patti was negligent and Carstens was free from negligence, most of the cases would refuse indemnity. However, there are several that would still allow indemnity. See W. B. Fosson & Sons v. Ashland O. & R. Co., Ky., 309 S.W.2d 176; Metropolitan Paving Co. v. Gordon H. & A., 66 N.M. 41, 341 P.2d 460. In this case, Patti was not solely negligent and Carstens was not free from negligence.

Where both the indemnitee and the indemnitor are concurrently negligent, most of the cases allow indemnity. Chicago Great Western Ry. Co. v. Farmers Produce Co., supra. The rule is clearly set out in Sinclair Prairie Oil Co. v. Thornley, 127 F.2d 128 (10th Cir.):

"The contractor was required to carry various kinds of protective insurance. He then agreed to assume liability for all such claims, that is, claims for workmen's compensation, employers' and public liability, and to hold the company free, clear and harmless from such claims. This is a provision generally found in such contracts, and the natural import thereof is that the contractor will so carry on his operation that no liability therefrom will attach to the other party. We can read nothing into the contract that would require Engle to indemnify Sinclair against liability from its own negligence unless negligence on the part of Engle concurred with the negligence of Sinclair.

"Whether Engle was guilty of negligence which concurred with the negligence of Sinclair and proximately caused the injury raised a question of fact to be determined by the jury."

Almost the same thing is stated in National Transit Co. v. Davis, 6 F.2d 729 (3rd Cir.):

"If the contract be construed and enforced in the light of the situation actually in view of the contracting parties, to wit, the normal continued operation of the road with the human and usual incident of occasional negligence of railroad employees and the consequent dangers resulting from flooding its tracks with oil, then we effect the purpose of the parties when we hold the indemnifying clause of the contract covered a situation where the transit company's escaped oil was the real cause of damage to third parties although incident thereto was the concurring element of that negligence of its employees incident to the usual operation of railroads."

Other cases supporting this rule are: Ohio Oil Co. v. Smith, 365 S.W.2d 621 (Texas); General Accident Fire & Life Assurance Corp. v. Smith & Oby Co., 6 Cir., 272 F.2d 581, 274 F.2d 819; Aluminum Co. of America v. Hully, 8 Cir., 200 F.2d 257; Metropolitan Paving Co. v. Gordon H. & A., supra, Southern Pac. v. Fellows, 22 Cal.App.2d 87, 71 P.2d 75; W. B. Fosson & Sons v. Ashland O. & R....