Heritage Cablevision v. New Albany Elec. Power System of City of New Albany

• Decision Date: 08 December 1994
• Docket Number: No. 91-CA-00460,91-CA-00460
• Citation: 646 So.2d 1305
• Parties: HERITAGE CABLEVISION v. NEW ALBANY ELECTRIC POWER SYSTEM OF the CITY OF NEW ALBANY, MISSISSIPPI.
• Court: Mississippi Supreme Court

Page 1305

646 So.2d 1305

HERITAGE CABLEVISION v. NEW ALBANY ELECTRIC POWER SYSTEM OF the CITY OF NEW ALBANY,

MISSISSIPPI.

No. 91-CA-00460.

Supreme Court of Mississippi.

Dec. 8, 1994.

W.O. Luckett, Jr., Luckett Law Firm, Clarksdale, for appellant.

William C. Spencer, Nathan W. Kellum, Mitchell McNutt Threadgill Smith & Sams, Tupelo, for appellee.

Before HAWKINS, C.J., and JAMES L. ROBERTS, Jr. and SMITH, JJ.

HAWKINS, Chief Justice, for the Court:

STATEMENT OF THE CASE

On December 7, 1988, Mike Biffle (hereinafter "Biffle"), an employee for the appellant Heritage Cablevision (hereinafter "Heritage"), was installing cable on a pole owned by the appellee New Albany Electric Power System of the City of New Albany (hereinafter "New Albany Electric"). Charlie Huffstatler (hereinafter "Huffstatler"), an employee of New Albany Electric, had at the same time parked a pick-up truck at the top of an inclined driveway. As Huffstatler reached to open the door to the truck, the parking brake popped out, causing the truck to roll down the driveway, hit the pole and injure Biffle.

New Albany Electric filed a Complaint for Declaratory Judgement against Heritage and Biffle in the Circuit Court of Union County on March 1, 1990, asking the court to confirm the existence and validity of an indemnity agreement between the two companies. Biffle answered on March 16, 1990, by filing a Motion to Dismiss pursuant to Rule 12(b)(6) which New Albany Electric responded to on April 18, 1990, and which was granted on March 6, 1991. On April 5, 1990, Heritage responded to New Albany Electric's complaint and joined Huffstatler under Rule 14 as third-party defendant. Eight days later Huffstatler filed an Answer to Third Party Complaint and Defenses.

Heritage then filed a Motion for Summary Judgement on all issues and against all parties on June 25, 1990. New Albany Electric filed its own Motion for Summary Judgement on July 18, 1990, asserting the existence and validity of the indemnification agreement. On March 25, 1991, an order granting summary judgement for New Albany Electric and denying summary judgement for Heritage was entered by Judge Robert Kenneth Coleman in the Union County Circuit Court.

Aggrieved by this order, Heritage filed a Notice of Appeal on April 8, 1991.

FACTS

This case has its beginnings on December 7, 1988, a date which will probably never live in infamy. Mike Biffle, an employee for Heritage Cablevision, was installing cable on a pole at the lower end of an inclined driveway. A half-ton pickup truck had been parked at the upper end by Charlie Huffstatler, employee of New Albany Electric. The truck was in park and the parking brake set, but when Huffstatler reached to open the truck door the parking brake popped loose. The truck rolled down the driveway, struck the pole on which Biffle was working and knocked him to the ground, causing extensive injuries.

New Albany Electric filed a Complaint for Declaratory Judgement against Biffle and Heritage on March 1, 1990, claiming an indemnification clause between Heritage and them relieved them of liability for Biffle's injuries. Biffle, on March 16, 1990, filed a Motion to Dismiss which New Albany Electric responded to in April of 1990 and which was granted in March of 1991. On April 5, 1990, Heritage answered, contending they were not bound by this indemnification clause, that the clause was invalid or inapplicable; and further that the negligence or strict liability of a third party was the sole proximate cause of the accident and that workers' compensation was Biffle's exclusive remedy. Finally, Heritage also used this response to join Huffstatler under Rule 14 as a third-party defendant. Huffstatler filed an Answer to Third Party Complaint and Defenses on April 26, 1990.

On June 25, 1990, Heritage filed a Motion for Summary Judgement as to all contested issues and against all parties. The Motion reads:

Comes now Defendant, Heritage Cablevision, Inc. by and through counsel, Luckett Law Firm, P.A. and pursuant to Rule 56 Mississippi Rules of Civil Procedure and moves the court for a summary judgement in its favor on all issues in this cause and for grounds states that there is no genuine issue as to any material fact and that it is entitled to judgement as a matter of law.

Movant relies upon; 1) Complaint, 2) Response To Complaint and Third Party Complaint, 3) Answer to Third Party Complaint and Defenses and 4) Deposition of Charlie Huffstatler which are attached hereto as Exhibits 1, 2, 3, and 4 respectively.

About a month later New Albany Electric entered its own Motion for Summary Judgement which similarly claimed that there were no genuine issues as to any material fact, and, like their previous Complaint for Declaratory Judgement, stated that an indemnity clause existed between them and Heritage which relieved them of all liability.

The clause in question is part of a 1967 agreement between New Albany Electric and New Albany T.V. Cable, Inc., a company Heritage bought and obtained cable servicing contracts from after execution of the 1967 agreement. The clause in question reads in relevant part:

10. Licensee shall indemnify, protect, and save harmless Licensor from and against any and all claims and demands for damages to property and injury or death to persons, including payments made under Workmen's Compensation Law or under any plan for employee's disability and death benefits, which may arise out of or be caused by the erection, maintenance, presence, use or removal of said attachments or by the proximity of the respective cables, wires, apparatus and appliances of the parties hereto; or by any act of Licensee, its agents or employees, on or in the vicinity of Licensor's poles, or arising out of the negligence of Licensor as to personal injuries received or suffered by agents or employees of Licensee while they are engaged in activities authorized by this Agreement. Licensee shall carry insurance, to protect the parties hereto from and against all claims, demands, actions, judgments, costs, expenses, and liabilities of every name and nature which may arise or result directly or indirectly, from or by reason of such loss, injury or damage....

Although Heritage was not a party to the original contract, they did utilize the licensing agreement to use the cable described therein. Furthermore, in 1982 they executed with New Albany Electric an amendment to the 1967 contract which altered the original payment plan but left the indemnity clause untouched.

Both the nature of the relationship between the old and new cable companies and the history of Heritage's conduct under the original agreement were further illuminated during the discovery process of this case. Heritage's responses to New Albany Electric's requests for admissions read as follows:

COMES NOW Defendant, Heritage Cablevision, Inc. by and through counsel, Luckett Law Firm, P.A. and responds to Plaintiff's request for admissions as follows:

REQUEST NO. 1: Admit that Heritage Cablevision was assigned the duties and obligations of New Albany T.V. Cable, Inc. provided for in the agreement between New Albany T.V. Cable, Inc. and New Albany Electric Power System of the city of New Albany, Mississippi, dated July 14, 1967, a copy of which is attached to the Complaint as Exhibit "A."

RESPONSE: Heritage Cablevision, Inc. is without sufficient knowledge or information to admit or deny the request. It has made reasonable inquiry pursuant to the dictates of Rule 36 Mississippi Rules Of Civil Procedure and can find no documentary evidence of any "assignment".

REQUEST NO. 2: Admit that Heritage Cablevision, since it began servicing the New Albany area, has recognized and adhered to the agreement dated July 14, 1967, a copy of which is attached to the Complaint as Exhibit "A."

RESPONSE: Admitted.

REQUEST NO. 3: Admit that Heritage Cablevision had used the poles provided by City of New Albany pursuant to the agreement dated July 14, 1967, a copy of which is attached to the Complaint as Exhibit "A," in servicing cable in the City of New Albany.

RESPONSE: Admitted with the qualification that the only use by Heritage Cablevision, Inc. of the "poles" has been since Heritage purchased the cable television system from New Albany T.V. Cable, Inc.

REQUEST NO. 4: Admit that the agreement between Heritage Cablevision and New Albany Electric Department dated September 20, 1982, a copy of which is attached to Complaint as Exhibit "A," acted as a supplement of the agreement dated July 14, 1967, a copy of which is attached to Complaint as Exhibit "A."

RESPONSE: Denied. The 1982 agreement is an amendment to the 1967 agreement not a supplement. The documents speak for themselves as to what is intended by the words contained therein.

Heritage's responses to New Albany's interrogatories also prove to be useful:

COMES NOW Defendant, Heritage Cablevision, Inc. and responds to Plaintiff's first set of interrogatories as follows:

INTERROGATORY NO. 1: Please describe the process in which Heritage Cablevision obtained the cable servicing contracts from New Albany T.V. Cable, Inc.

RESPONSE: Heritage came to learn that the New Albany system was for sale and it purchased the then existing system.

INTERROGATORY NO. 2: What contractual relationship, if any, existed between Heritage Cablevision and the Electric Department of the City of New Albany on December 7, 1988?

RESPONSE: Heritage Cablevision, Inc. is of the position that any and all contractual relationships that existed between Heritage Cablevision, Inc. and the City of New Albany on December 7, 1988, would be the 1967 Agreement attached to the Complaint and the 1982 Amendment attached to the Complaint.

INTERROGATORY NO. 3: Identify and describe any contracts, duties or obligations regarding the City of New Albany assigned to Heritage Cablevision from New Albany T.V. Cable, Inc.

RESPONSE: Heritage is of the opinion that its contracts, duties, and obligations...