Herter v. Ringland-Johnson-Crowley Co.

• Decision Date: 25 November 1992
• Docket Number: No. 91-998,MID-IOWA,RINGLAND-JOHNSON-CROWLEY,91-998
• Parties: Richard A. HERTER and Ivadean Herter, Plaintiffs, v.COMPANY, Defendant, and Waldinger Corporation, Appellant.COMPANY, Third-Party Plaintiff, v.ELECTRIC COMPANY, Third-Party Defendant-Appellee.ELECTRIC COMPANY, Third-Party Plaintiff-Appellee, v. WOLIN & ASSOCIATES, Third-Party Defendant-Appellant.
• Court: Iowa Supreme Court

Page 672

492 N.W.2d 672

Richard A. HERTER and Ivadean Herter, Plaintiffs, v. RINGLAND-JOHNSON-CROWLEY COMPANY, Defendant, and Waldinger Corporation, Appellant.

RINGLAND-JOHNSON-CROWLEY COMPANY, Third-Party Plaintiff, v. MID-IOWA ELECTRIC COMPANY, Third-Party Defendant-Appellee.

MID-IOWA ELECTRIC COMPANY, Third-Party Plaintiff-Appellee, v. WOLIN & ASSOCIATES, Third-Party Defendant-Appellant.

No. 91-998.

Supreme Court of Iowa.

Nov. 25, 1992.

Joseph A. Happe of Jones, Hoffmann & Huber, Des Moines, for appellants.

Scott E. McLeod of Lynch, Dallas, Smith & Harman, Cedar Rapids, for appellee.

Considered by McGIVERIN, C.J., and LARSON, LAVORATO, NEUMAN, and SNELL, JJ.

NEUMAN, Justice.

This appeal involves a dispute over equitable contribution between two parties bound by identical indemnification agreements with the same indemnitee.

Neither the facts nor the procedural history of the case are disputed. Plaintiff Richard Herter was injured at a construction site when he fell from an extension ladder owned by Ringland-Johnson-Crowley (RJC), the general contractor. Herter was an employee of Mid-Iowa Electric Company, the electrical subcontractor. The ladder had been moved and then negligently secured by employees of Waldinger Corporation. Waldinger was a subcontractor of Wolin & Associates, Inc., RJC's original sheet metal subcontractor on the job. RJC was the beneficiary of separate indemnification agreements with both Mid-Iowa and Wolin.

Herter sued RJC and Waldinger for the injuries he sustained. ¹ RJC brought a third-party action against Mid-Iowa for indemnity. Mid-Iowa, in turn, brought a third-party claim against Wolin and a cross-claim against Waldinger for contribution. Pursuant to its subcontract with Wolin, Waldinger took up Wolin's defense and has agreed to hold Wolin harmless for any judgment ordered against it in this case.

Following discovery, RJC moved for an adjudication of law points under Iowa Rule of Civil Procedure 105. It subsequently prevailed as a matter of law on its claim that Mid-Iowa must indemnify it for any loss sustained as a result of Herter's suit, including costs and attorney fees. Thereafter the following settlement was reached: Mid-Iowa paid Herter $110,000 on behalf of RJC; Waldinger paid Herter $40,000. The Herter suit was dismissed. The remaining parties, however, reserved their competing claims for indemnity and contribution.

Mid-Iowa then moved for summary judgment on its contribution claim against Wolin. The court sustained the motion, ruling that because Wolin and Mid-Iowa share identical obligations of indemnity towards RJC, equity compelled a division of the sum advanced by Mid-Iowa on RJC's behalf in settlement of Herter's suit. Thus the district court entered judgment against Wolin and Waldinger, jointly, for $55,000. It is from this judgment that Wolin and Waldinger have appealed.

We note that Mid-Iowa originally cross-appealed the order directing it to indemnify RJC. Just before oral argument, however, Mid-Iowa apparently settled its dispute with RJC and has now dismissed its cross-appeal. Thus the sole remaining question on appeal is whether the court properly ordered judgment for contribution against Wolin and Waldinger for one-half the sum paid by Mid-Iowa to indemnify RJC. For the reasons that follow, we affirm the judgment of the district court.

I. Although the claim before us is strictly for contribution, not indemnity, the contribution claim rests on obligations flowing from Wolin's and Mid-Iowa's contracts of indemnity with RJC. Those indemnity contracts provide, in pertinent part:

The Subcontractor agrees to assume entire responsibility and liability for all damages or injury to all persons, whether employees or otherwise, and to all property, arising out of, resulting from or in any manner connected with, the execution of the work provided for in this Subcontract or occurring or resulting from the use by the Subcontractor, his agents or employees of material, equipment, instrumentalities or other property, whether the same be owned by the Contractor, the Subcontractor or third parties, and the Subcontractor agrees to indemnify and save harmless the Contractor, his agents and employees from all such claims including, without limiting the generality of the foregoing, claims for which the Contractor may be, or may be claimed to be, liable, and legal fees and disbursements paid or incurred to enforce the provisions of this paragraph, and the Subcontractor further agrees to obtain, maintain and pay for such contractual liability insurance coverage as will insure the provisions of this paragraph.

This court has long recognized the enforceability of indemnity agreements. We have looked with some disfavor, however, on those which relieve the indemnitee of its own negligence. Thornton v. Guthrie County Rural Elec. Coop. Ass'n, 467 N.W.2d 574, 576-77 (Iowa 1991). The enforceability of such contracts turns on whether the indemnifying language is "clear and unequivocal." Id. (quoting Payne Plumbing & Heating Co. v. Bob McKiness Excavating & Grading, Inc., 382 N.W.2d 156, 160 (Iowa 1986)). Broad and general language will not suffice to shift the burden of liability, particularly when the damage is caused by the indemnitee's sole negligence. Trushcheff v....