Fabarc Steel v. Composite Const. Systems
Decision Date | 20 May 2005 |
Docket Number | 1031890. |
Citation | 914 So.2d 344 |
Parties | FabARC STEEL SUPPLY, INC. v. COMPOSITE CONSTRUCTION SYSTEMS, INC. |
Court | Alabama Supreme Court |
Carol Ann Smith, Brenen G. Ely, and Joel S. Isenberg of Smith & Ely, L.L.P., Birmingham, for appellant.
Philip R. Collins and Joseph R. Duncan, Jr., of Huie, Fernambucq & Stewart, Birmingham, for appellee.
FabArc Steel Supply, Inc. ("FabArc"), appeals a summary judgment entered by the Morgan Circuit Court for Composite Construction Systems, Inc. ("CCSI"), and the denial of FabArc's cross-motion for summary judgment against CCSI, all with respect to FabArc's third-party action against CCSI in litigation arising out of a death at a construction site. We affirm in part, reverse in part, and remand.
Shimizu America Corporation ("Shimizu") was the general contractor for a commercial construction project near Decatur, Alabama, known as the "Toray project." Evodio Sanchez, an employee of J & J Masonry, a subcontractor on the Toray project, was killed on April 13, 1998, when a masonry wall collapsed and fell on him following the removal of adjacent scaffolding. Cynthia Sanchez, as the personal representative of Evodio Sanchez's estate, filed a wrongful-death action against Shimizu, Don Chambers (the project superintendent for Shimizu), and various fictitiously named parties. By amendment filed seven months later, on December 7, 1999, Cynthia substituted FabArc, also a subcontractor on the Toray project, for one of the fictitiously named parties. Under its subcontract with Shimizu, FabArc had agreed to furnish and install the structural steel required for the job. Because FabArc was solely a steel fabricator, it had subcontracted to CCSI, a steel-erection company, the installation portion of FabArc's subcontract with Shimizu. Specifically, CCSI agreed "to furnish all labor, equipment, and insurance necessary to unload and complete the erection" of the structural steel called for by the subcontract between Shimizu and FabArc. Thus, as between FabArc and CCSI, FabArc retained responsibility for providing the steel components and delivering them to the job site, and CCSI assumed responsibility for unloading the steel and then installing it when and as called for by the Shimizu-FabArc subcontract.
The complaint alleged the following as to FabArc:
FabArc, in turn, filed a third-party complaint against CCSI seeking indemnification for any damages that might be directly imposed on FabArc in the action and any for indemnity FabArc might be determined to owe to Shimizu. Additionally, FabArc charged that CCSI had "breached its contractual duty by failing to name FabArc Steel an additional insured without exception(s) under its comprehensive liability policy." In those respects, FabArc relied on the following provisions of its subcontract with CCSI:
CCSI has never been named as a defendant in the Sanchez action.
Early in 2001 Shimizu's insurers, including its excess insurer, Great American Assurance Company ("Great American"), settled Cynthia's claims against Shimizu. Shimizu's primary carrier contributed $1,000,000 to the settlement and Great American contributed $2,500,000. FabArc also participated in the settlement, paying $600,000 to settle Cynthia's claims against Shimizu. Neither FabArc nor its liability insurance carrier contributed any money on behalf of Shimizu to settle Cynthia's claims against Shimizu, despite demands on them to do so; and neither CCSI nor its liability insurer carrier contributed any money on behalf of FabArc to settle either Cynthia's or Shimizu's claims against it, despite demands on them to do so.
In October 2001 Great American, proceeding as subrogee of Shimizu, filed its "complaint in intervention" in the action, seeking indemnification from FabArc and CCSI under the terms of the indemnification clause in the subcontract between Shimizu and FabArc. As noted earlier, that indemnification clause obligated FabArc to indemnify Shimizu against all claims that, among other things, arose out of FabArc's work, "to the extent [Evodio's death was] caused or alleged to be caused in whole or in part by any negligent act of [FabArc] or anyone directly or indirectly employed by [FabArc] or anyone for whose acts [FabArc] may be liable. . . ." (Emphasis supplied.) The trial court entered a summary judgment in favor of Great American against FabArc, reasoning, in pertinent part:
(Emphasis in original.)
Conversely, the trial court entered summary judgment in favor of CCSI and against Great American, holding that Great American's claim against CCSI was dependent on the theory that Shimizu was an intended third-party beneficiary of FabArc's subcontract with CCSI, whereas Shimizu's contract with FabArc expressly provided that nothing in it would "create any subcontractual relationship between [Shimizu] ... and any lower-tier subcontractor." Accordingly, the trial court held, CCSI owed no duty...
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