Hopper v. Kelz, 96-518

• Decision Date: 03 April 1997
• Docket Number: No. 96-518,96-518
• Citation: 166 Vt. 616,694 A.2d 415
• Court: Vermont Supreme Court
• Parties: Wayne and Judy HOPPER v. Richard and Kathleen KELZ v. Scott BROWN and H. Greenberg & Sons.

Page 415

694 A.2d 415

166 Vt. 616

Wayne and Judy HOPPER v. Richard and Kathleen KELZ v. Scott BROWN and H. Greenberg & Sons.

No. 96-518.

Supreme Court of Vermont.

April 3, 1997.

Before AMESTOY, C.J., and GIBSON, DOOLEY and MORSE, JJ.

ENTRY ORDER

Third-party plaintiffs Richard and Kathleen Kelz appeal the dismissal of their claim against third-party defendants H. Greenberg & Sons and Scott Brown, and an order granting third-party defendants' motion for judgment on the pleadings pursuant to V.R.C.P. 12(c). We affirm.

On a V.R.C.P. 12(c) motion, the issue is whether the movant is entitled to judgment as a matter of law on the basis of the pleadings. For purposes of a Rule 12(c) motion, all well pleaded factual allegations in the nonmovant's pleadings and all reasonable inferences that can be drawn from the pleadings are assumed to be true and any contravening assertions in the movant's pleadings are taken to be false. Thayer v. Herdt, 155 Vt. 448, 456, 586 A.2d 1122, 1126 (1990).

The pleadings indicate that on August 7, 1993, Wayne Hopper suffered injuries while he and fellow employee Scott Brown were attempting to remove an old refrigerator from the Kelzes' basement. The Kelzes had purchased a new refrigerator from Hopper's employer, H. Greenberg & Sons, which as part of the sales contract had agreed to remove an old refrigerator from the Kelzes' basement. As a result of his injuries, Hopper received workers' compensation from H Greenberg & Sons. In addition, Hopper brought a tort action against the Kelzes, alleging that he was injured because the Kelzes directed that he use a cellar stairway to remove the refrigerator and that the stairway was unsafe for that task. On January 18, 1996, the Kelzes filed a third-party complaint against H. Greenberg & Sons and Scott Brown, seeking indemnification of any judgment Hopper might receive against the Kelzes in the tort action.

A party may seek indemnity from a joint tortfeasor "if (a) there is an express agreement or undertaking by one to indemnify the other, or (b) the circumstances are such that the law will imply such an undertaking." Bardwell Motor Inn, Inc. v. Accavallo, 135 Vt. 571, 572, 381 A.2d 1061, 1062 (1977). There was no express agreement of indemnification between the Kelzes and H. Greenberg & Sons, or between the Kelzes and Scott Brown. The Kelzes nonetheless argue that an implied right of indemnification exists between them and third-party defendants.

The Kelzes argue that Bardwell is analogous to this case. We disagree. In Bardwell, we adopted the rule in the Restatement of Restitution § 95 (1937), which states that an implied right of indemnification arises

"[w]here a person has become liable with another for harm caused to a third person because of his negligent failure to make safe a dangerous condition of land or chattels, which was created by the misconduct of the other or which, as between the two, it was the other's duty to make safe...."

Id. at 573, 381 A.2d at 1062 (quoting Restatement of Restitution § 95 (1937)). In Bardwell, the operator of an inn contracted with a glass-repair company to fix the glass on the front door of the inn. During the...