Gunter v. U.S. Fidelity & Guaranty Co.
Decision Date | 03 December 1976 |
Citation | 340 So.2d 749 |
Parties | J. M. GUNTER v. UNITED STATES FIDELITY & GUARANTY CO. EMPLOYERS INSURANCE CO. OF ALABAMA v. J. M. GUNTER. SC 1708, SC 1708--A. |
Court | Alabama Supreme Court |
Robert B. Albritton, Andalusia, for U.S. Fid. & Guar. Co.
This is an appeal from a decree declaring an employer subcontractor and its insurance company liable to the prime contractor and its insurance company. We reverse.
The genesis of this case was June 28, 1954. Then, Royce F. Pierce, an employee of J. M. Gunter, a subcontractor, while on the job, fell from a scaffold erected by Daniel Construction Company, the general contractor. Pierce was seriously injured from the fall, and died several days later. When death came, he was 17 years old.
Young Pierce's father filed a wrongful death action against Daniel, under the provisions of Title 26, § 312, Code of Alabama, for damages for the death of his son. The jury returned a verdict of $45,000 damages. The action was defended by U.S. Fidelity & Guaranty Company, Daniel's insurer. The judgment was reduced to $30,000, and USF&G paid it.
Subsequently, USF&G, as subrogee of Daniel, filed suit against Gunter, Pierce's employer, to recover the amount of the judgment on the basis of the indemnity agreement in the subcontract between Daniel and Gunter. The pertinent portion of that contract follows:
After the USF&G subrogation suit against it, Gunter brought a declaratory judgment action against Employers, alleging that Employers was obligated to defend him and pay any judgment in the subrogation action against him.
USF&G amended its complaint against Gunter to assert damages for breach of contract by not providing public liability insurance covering Daniel for the death of Pierce. And, later, USF&G intervened in Gunter's declaratory suit against Employers, asserting a claim against it for the amount paid for damages in the wrongful death action.
The threshold question in this case is whether Gunter, the employer, must indemnify Daniel, the general contractor. The answer to this question is 'No.'
The wrongful death action against Daniel was based on its active negligence in constructing the scaffold from which young Pierce fell. In this regard, this court said in affirming the trial court:
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