Gatley v. United Parcel Service, Inc.

• Citation: 662 F. Supp. 200
• Decision Date: 12 June 1987
• Docket Number: Civ. No. 86-0223 P.
• Parties: Philip C. GATLEY, Plaintiff, v. UNITED PARCEL SERVICE, INC., Defendant and Third-Party Plaintiff, v. Wallace E. NUTTER, Third-Party Defendant.
• Court: U.S. District Court — District of Maine

662 F. Supp. 200

Philip C. GATLEY, Plaintiff, v. UNITED PARCEL SERVICE, INC., Defendant and Third-Party Plaintiff, v. Wallace E. NUTTER, Third-Party Defendant.

Civ. No. 86-0223 P.

United States District Court, D. Maine.

June 12, 1987.

Dwight A. Fifield, William H. Childs, Portland, Me., for plaintiff.

Harrison L. Richardson, Barri L. Bloom, Richardson, Tyler & Troubh, Portland, Me., for defendant and third-party plaintiff.

Evan M. Hansen, Preti, Flaherty & Beliveau, Portland, Me., for third-party defendant.

MEMORANDUM OF DECISION AND ORDER ON THIRD-PARTY DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

GENE CARTER, District Judge.

This case is before the Court on Third-Party Defendant Nutter's motion for summary judgment. For the reasons stated herein, the motion will be granted in part and denied in part.

The facts are as follows. Defendant and Third-Party Plaintiff United Parcel Service, Inc. (UPS) contracted with Nutter to clean UPS's facility in South Portland, Maine. Nutter, in turn, employed Plaintiff Gatley to assist him in cleaning operations. While working on UPS premises on October 24, 1984 and August 30, 1985, Gatley was injured; in connection therewith, he recovered workers' compensation benefits from Nutter's insurance carrier. Then, according to Nutter's affidavit, UPS informed Nutter on September 2, 1986 that it was barring Gatley from its premises because of an "attitude problem." Nutter then laid Gatley off.

Gatley brought this action in state court, alleging that UPS's negligence had caused his 1984 and 1985 injuries. UPS removed the case to this Court pursuant to 28 U.S.C. § 1441 based on diversity of citizenship. Gatley then amended his complaint by adding a count alleging that UPS had tortiously interfered with his employment relationship with Nutter. UPS then filed a third-party complaint seeking contractual indemnification from Nutter for any judgment that Gatley might obtain against UPS. Nutter now moves for summary judgment on UPS's indemnification claim.

The indemnification clause in the contract between UPS and Nutter (as "Contractor") reads, in pertinent part, as follows:

The Contractor hereby assumes entire responsibility and liability for any and all damages or injury of any kind or nature whatsoever, caused by, resulting from, arising out of, incidental to, or accruing in connection with the execution of the work provided for in this Agreement. Such damage and injury shall include ... injury to all persons, including employees of the Contractor....

The Contractor agrees to indemnify and save harmless UPS, its agents, servants, and employees from and against any and all claims, liabilities, loss and expense by reason of any liability imposed by law upon UPS for any above described damage or injury, however such may be caused, including but not limited to such damage or injury as is caused by the sole or concurrent negligence of UPS, its agents, servants and employees.... This indemnity obligation shall not be limited in any way by benefits payable under Workmen's Compensation acts.... (Emphasis added.)

Nutter first argues that this clause is not a valid waiver of his employer immunity under the Maine Workers' Compensation Act, Me.Rev.Stat.Ann., tit. 39, §§ 1-195 (1964 & Supp.1986). This employer immunity extends to suits wherein an employee sues a third party for a covered injury and the third party seeks contribution from the employer. Diamond Intern. Corp. v. Sullivan & Merritt, 493 A.2d 1043, 1045-46 (Me.1985). Although an employer may waive this immunity to third-party suits by agreeing to indemnify the third party, "`an indemnity clause of this type is enforceable only if it clearly and specifically contains a waiver of the immunity of the workers' compensation act, either by so stating or specifically stating that the indemnitor assumes potential liability for actions brought by its own employees.'" Id. at 1048 (quoting Brown v. Prime Constr. Co., 102 Wash.2d 235, 684 P.2d 73, 75 (1984)). Nutter argues that the clause at issue here does not, as a matter of law, meet the "clear and specific" standard.

The Court concludes otherwise. Under the clause, Nutter clearly and specifically assumes liability for injuries to his own employees, and the clause expressly provides that this obligation is not limited in any way by benefits payable through workers' compensation. Thus the clause is "clear and specific" under either of the Diamond Intern. tests: it expressly states that workers' compensation does not limit Nutter's indemnity obligation, and it expressly assumes liability for injuries to Nutter's own employees. Moreover, Nutter expressly obligates himself to indemnify UPS for injuries caused by UPS's sole or concurrent negligence. Cf. Emery-Waterhouse Co. v. Lea, 467 A.2d 986, 993 (Me. 1983) (stating that only where contract clearly and unequivocally reflects a mutual intention that a party be indemnified for its own negligence will the contract be so interpreted); Burns & Roe, Inc. v. Central Maine Power Co., 659 F.Supp. 141, 143-144 (D.Me.1...