Fireman's Fund Ins. Co. v. Commercial Stand. Ins. Co.
| Decision Date | 24 September 1971 |
| Docket Number | No. 4470,4470 |
| Citation | 478 S.W.2d 811 |
| Parties | FIREMAN'S FUND INSURANCE COMPANY et al., Appellants, v. COMMERCIAL STANDARD INSURANCE COMPANY et al., Appellees. |
| Court | Texas Court of Appeals |
Cantey, Hanger, Gooch, Cravens & Munn, Tolbert L. Greenwood, Ft. Worth, for appellants.
Garrett, Settle & Callaway, Rufus S. Garrett, Jr., Stone, Tilley, Parker, Snakard, Law & Brown, Ft. Worth, for appellees.
This is a declaratory judgment case brought by Thos. S. Byrne, Inc ., (Byrne) and its liability insurance carrier, Commercial Standard Insurance Company (Commercial) against Sam P. Wallace Co., Inc., (Wallace) and its insurance carrier, Fireman's Fund Insurance Company (Fireman's) and General Motors Corporation (General Motors) and its carrier, Royal Indemnity Company (Royal) for construction of certain indemnity provisions of Wallace's contract with General Motors. Appellants, Fireman's and Wallace, defendants in the trial court, appeal from a judgment requiring Wallace and Fireman's to indemnify and hold Commercial, Byrne, and General Motors harmless in personal injury actions filed by R. L. Gamble (Gamble) and Woodrow W . Frith (Frith), employees of Wallace. Fireman's also appeals from the trial court's refusal to enter judgment in its favor for workmen's compensation benefits paid to Gamble and Frith.
General Motors executed contracts with Wallace and Byrne for the construction of an addition to its Arlington plant. Wallace's contract contained a provision whereby General Motors could assign the contract and it was later assigned by General Motors to Byrne as general contractor. Gamble and Frith, while employed for Wallace in the construction of the plant addition, sustained injuries when they fell from a scaffold. Both Gamble and Frith were paid workmen's compensation benefits by Fireman's, Wallace's compensation carrier, for the injuries sustained.
Gamble and Frith filed separate suits against General Motors alleging specific acts of negligence on the part of General Motors. Fireman's intervened seeking recovery of the compensation benefits paid. General Motors joined Byrne and Wallace as third party defendants seeking indemnity. Byrne then sued Wallace as a fourth party defendant in the Gamble suit. It later dismissed Wallace in the Gamble suit and agreed not to join Wallace in the Frith suit. Both the Gamble and Frith cases were settled. Byrne and Commercial and Wallace and Fireman's entered into written agreements consenting to the settlements. The written agreements expressly provided that ultimate responsibility for payment would be determined in the instant declaratory judgment action.
Section 12 of the General Motors-Wallace contract and of the General Motors-Byrne contract are identical and read as follows:
'The Contractor shall protect the Owner and Architect-Engineer against all liabilities, claims or demands for injuries or damages to any person or property growing out of the performance of work under this specification. The Contractor assumes all liability for any injuries or damages occasioned by his agents or employes on the premises of the Owner regardless of whether such agent or employe is, at the time of such injury to damage acting within the scope of his employment.
All insurance policies are to be issued by companies authorized to do business under the law of the State in which the work is to be done and copies of said policies shall be filed with the Owner before work is started.
Limits for Liability Insurance shall be not less than $100,000.00 for injury to one person, $300,000.00 for injury to more than one person, and $100,000.00 for property damage.
Contractor shall protect the Owner and Architect-Engineer against all claims arising from the use of passenger automobiles, motor trucks, and other motor vehicles owned and operated by the Contractor and/or employes of the Contractor in connection with the work herein specified. Contractor shall submit to the Owner and Architect-Engineer certificates of insurance evidencing public liability and property damage coverage on all such vehicles.
In addition to the Liability Insurance for the protection of the Owner and Architect-Engineer, the Contractor shall, during the continuance of the work under this contract and also extra work in connection therewith, maintain Liability Insurance for injury and/or death to any of his employes and/or to other persons, including any liability which may arise by virtue of the statute or law now in force or which may hereafter be enacted.' (Emphasis added)
The trial court found that: General Motors assigned the contract between it and Wallace to Byrne and that such assignment did not relieve Wallace of any obligations previously existing under the contract; Section 12 of the contract required Wallace to furnish insurance coverage of $100,000.00 for injury to one person and $300,000.00 for injury to more than one person, for '. . . all liabilities, claims or demands for injuries or damages to any person or property growing out of the performance of work under this specification'; such insurance coverage provided by Wallace protected General Motors from liability within said policy limits without regard to fault of General Motors; and, the injuries sustained were within the contemplation of Section 12.
Appellants contend that the trial court erred in holding Fireman's and Wallace obligated to indemnify Byrne or General Motors in the Gamble and Frith cases because as a matter of law neither Wallace's nor Byrne's contract obligated them to indemnify General Motors against its own negligence or to defend suits predicated upon the alleged negligence of General Motors.
We are of the opinion that Section 12 required Wallace and Fireman's to indemnify and protect General Motors to the extent of the required insurance policy limits, whether or not General Motors was negligent. In Ohio Oil Company v. Smith 365 S.W.2d 621 (Tex.Sup.1963) the indemnity provision was as follows:
'Ohio shall not be liable or responsible for and Contractor shall save and hold harmless Ohio from and against any and all claims and damages of every kind, for injury to or death of any person or persons and for damage to or loss of property, arising out of or attributed, directly or indirectly, to the operations of Contractor.'
The Court stated:
'Section 15 of the contract embodies the manifestations of the intent of the parties in regard to indemnity. Though broad words are used, they are not to be strictly construed, for the intent alone, as expressed in the words of indemnity, controls the scope of the coverage. The Court of Civil Appeals held that the indemnity provision of the contract is...
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Fireman's Fund Ins. Co. v. Commercial Stand. Ins. Co.
...was due to the sole negligence of Wallace employees and not to any negligence of General Motors. The Court of Civil Appeals affirmed. 478 S.W.2d 811. We disapprove the above mentioned conclusions with reference to Section 12 but affirm on the basis of other findings and conclusions of the c......
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