Krieger v. Wilson Corp.

Decision Date30 November 2005
Docket NumberNo. 24,497.,No. 24,421.,24,421.,24,497.
Citation2006 NMCA 034,131 P.3d 661
PartiesJessie KRIEGER, Plaintiff, v. The WILSON CORPORATION, Defendant and Third-Party Plaintiff-Appellant, v. Allstate Insurance Company, and Barbara Stevens, d/b/a Hooter Browns, Third-Party Defendants-Appellees.
CourtCourt of Appeals of New Mexico

Stephen E. McIlwain, Albuquerque, NM, for Plaintiff.

Comeau, Maldegen, Templeman & Indall, LLP, Stephen J. Lauer, Grey W. Handy, Sharon W. Horndeski, Santa Fe, NM, for Defendant and Third-Party Plaintiff-Appellant.

Modrall, Sperling, Roehl, Harris & Sisk, P.A., Lisa Mann, Jennifer A. Noya, Albuquerque, NM, for Third-Party Defendant-Appellee Allstate Insurance Company.

The Hone Law Firm, P.C., Jay R. Hone, Albuquerque, NM, for Third-Party Defendant-Appellee Barbara Stevens.

OPINION

BUSTAMANTE, Chief Judge.

{1} This case involves two consolidated appeals by The Wilson Corporation (Wilson) against Barbara Stevens, d/b/a Hooter Browns Restaurant (Lessee), the owner of a restaurant located in Wilson's building, and Lessee's insurance company, Allstate Insurance Company (Allstate). The basic issue is whether an indemnification provision in the restaurant lease creates or-under the circumstances present here-may create actionable obligations in the Lessee and Allstate to defend Wilson from a tort action brought by a restaurant patron. Complicating the analysis somewhat is that it is unclear from the record exactly where on Wilson's premises the injury occurred. Applying settled principles of contract interpretation and civil procedure, we decide that the district court prematurely dismissed some of Wilson's claims. We affirm in part and reverse in part.

I. BACKGROUND

{2} Jessie Krieger visited Hooter Browns Restaurant (restaurant) in May 2000. Krieger filed a complaint for personal injuries against Wilson, the owner of the building and adjacent parking area, for damages suffered in a fall. Krieger's complaint alleged she stepped into a "hole or other defect in the paving located within or near the parking lot" of the restaurant. Wilson requested a defense and indemnification from Lessee and Allstate. Both denied the request. Wilson eventually settled the claim with Krieger. In the meantime, Wilson filed a third-party complaint for contractual indemnification, breach of contract, negligence, and a declaratory judgment against the Lessee and Allstate.

{3} Allstate moved for summary judgment pursuant to Rule 1-056(A) NMRA on the grounds that Wilson was not an Allstate insured at the time Krieger's accident occurred, and that the Lease did not otherwise create insurance coverage for Wilson. Allstate alleged that Lessee did not add Wilson as an additional named insured under the policy until 2002, two years after Krieger's accident. Wilson asserted it was unaware that it was not named as an additional insured at the time the original third-party complaint was filed. At the hearing on Allstate's motion for summary judgment, Allstate emphasized a new argument: that the injury occurred outside the physical area covered by the Lease and that therefore there was and could be no coverage under Lessee's policy. The district court granted Allstate's motion for summary judgment.

{4} Lessee moved for dismissal pursuant to Rule 1-012(B)(6) NMRA. The district court granted Lessee's motion to dismiss, and at the same time denied Wilson's motion for leave to amend its complaint to allege that Lessee failed to list Wilson as an additional insured on the insurance policy. At the hearing on the motion, the district court reasoned "[t]here's nothing in this lease that places the liability for any accidents which occur in the parking lot with the third party defendant, [Lessee]."

{5} These two appeals followed. We discuss each of Wilson's appeals in turn, beginning with its case against Lessee. We provide details on the Lease and insurance provisions in our discussion below.

II. WILSON V. LESSEE

{6} Wilson's claims against Lessee include contractual indemnification, breach of contract, violation of the Unfair Practices Act (UPA), and negligence. The UPA claims have been abandoned on appeal. Wilson argues that the district court erred in granting the motion to dismiss for several reasons, including: the Lease required Lessee to indemnify Wilson for claims based on injuries such as those sustained by Krieger; there are facts provable which would entitle Wilson to relief under the indemnification provision; Wilson has a viable claim against Lessee for breach of contract for failure to procure insurance; and the claim of negligence was adequately plead. We begin with the negligence claim, then discuss the claim for contractual indemnification and the breach of contract claims.

{7} We review a dismissal pursuant to Rule 1-012(B)(6) de novo. Young v. Van Duyne, 2004-NMCA-074, ¶ 13, 135 N.M. 695, 92 P.3d 1269. "A motion to dismiss pursuant to [Rule] 1-012(B)(6) tests the legal sufficiency of the complaint. In reviewing an order granting a motion to dismiss, we accept as true all facts properly pleaded." Rummel v. Edgemont Realty Partners, Ltd., 116 N.M. 23, 25, 859 P.2d 491, 493 (Ct.App.1993) (citation omitted). "A complaint should not be dismissed unless there is a total failure to allege some matter essential to the relief sought." Healthsource, Inc. v. X-Ray Assocs. of N.M., 2005-NMCA-097, ¶ 16, 138 N.M. 70, 116 P.3d 861.

A. NEGLIGENCE

{8} To determine whether Wilson's allegations state a claim for negligence against Lessee, we accept all well-pleaded facts as true and consider whether Wilson might prevail under any state of facts provable under the claim. See id. Wilson alleges that Lessee, as the occupant and operator of the restaurant, owed a duty to business visitors to use ordinary care to keep the premises safe for use by such visitors. Wilson argues that if it is found negligent with respect to Krieger in the underlying personal injury claim, it should be determined that Lessee, as the occupant and operator of the restaurant, should also be found negligent.

{9} The claim of negligence fails for several reasons, but we need not get beyond the first element, duty. The complaint is void of any allegations of a duty of care owed by Lessee to Wilson. See Bober v. N.M. State Fair, 111 N.M. 644, 653, 808 P.2d 614, 623 (1991) (stating that the "injured [party's] complaint must allege at least some facts . . . giving rise to invocation of [a] duty in [the] particular case"); Blake v. Pub. Serv. Co. of N.M., 2004-NMCA-002, ¶ 6, 134 N.M. 789, 82 P.3d 960 (stating that the question of whether a duty exists turns on whether a relationship existed by which defendant was legally obliged to protect the interest of plaintiff). The complaint alleges that Lessee "owed a duty to business visitors to use ordinary care to keep the premises safe." (Emphasis added.) There is no factual allegation that Lessee owed a duty to Wilson, that Lessee breached the duty, or that damages flowed from such a breach. Wilson is saying that if Lessee's negligence injures a third party, and Wilson suffers damages as a result of the third party's injuries, then Lessee is negligent as to Wilson. What Wilson alleges in the claim for negligence is no more than another indemnification claim. Such allegations fail to state a claim for negligence. We affirm the dismissal of Wilson's claim of negligence against Lessee.

B. CONTRACTUAL INDEMNIFICATION

{10} Wilson argues that as a condition of leasing the premises, Lessee undertook to indemnify it for any bodily injuries to its patrons arising out of the operation of the restaurant, no matter where or how those injuries occurred. Wilson entered into a Lease with Carla Grim which was subsequently assigned to Barbara Stevens, d/b/a Hooter Browns. Wilson argues that the following provisions of the Lease establish the obligation to indemnify it:

3. . . . Lessee agrees to keep and maintain the premises in a clean and safe condition. . . .

. . . .

10. Lessee further agrees to indemnify and hold Lessor and its officers, directors, employees and agents harmless from any and all claims, liens, suits, causes of action, damages, costs, taxes, and expenses, including, but not by way of limitation, expenses of litigation, court costs and attorney fees, incurred, arising, or in any way resulting from Lessee's activities, actions, or omissions or the actions of any of her agents, employees, guests, invitees, or licensees. This indemnity shall survive the termination of this agreement for any reason, and neither final payment of all rentals nor acceptance of such payments by Lessor shall constitute a waiver of the foregoing indemnity provision.

The Lease also provides that "[t]he Lessor does hereby . . . lease unto the Lessee the restaurant portion only of the Lessor's building at the B & W Truck Stop."

{11} The district court granted Lessee's motion to dismiss reasoning that "[t]here's nothing in this lease that places the liability for any accidents which occur in the parking lot with the third party defendant, [Lessee]." With regard to the issue of breach of contract, the district court stated:

Now, the Wilson Corporation may have a cause of action against her enforcing her to obtain an insurance policy naming the Wilson Corporation. But as I see the lease agreement, it would mean that they would be liable as it says, in Paragraph 10, for anything or any activities, actions or omissions by lessee or any of its employees or agents. But it does not extend, as far as I can see, to the parking lot. Because it limits it to the actions—to the activities and to the omissions.

The district court apparently concluded that Lessee had no obligation under the indemnity clause for anything occurring outside the restaurant.

{12} To rule as a matter of law that the motion to dismiss should be granted because Lessee had no responsibility under...

To continue reading

Request your trial
27 cases
  • Evanston Ins. Co. v. Desert State Life Mgmt.
    • United States
    • U.S. District Court — District of New Mexico
    • September 6, 2020
    ...‘originating from,’ ‘having its origin in,’ ‘growing out of’ or ‘flowing from.’ " Krieger v. Wilson Corp., 2006-NMCA-034, ¶ 14, 139 N.M. 274, 131 P.3d 661, 666 (quoting Baca v. New Mexico State Highway Dep't, 1971-NMCA-087, ¶ 14, 82 N.M. 689, 486 P.2d 625, 628 ). In analyzing the term in an......
  • Nilson v. Peerless Indem. Ins. Co.
    • United States
    • U.S. District Court — District of New Mexico
    • September 8, 2020
    ...‘originating from,’ ‘having its origin in,’ ‘growing out of’ or ‘flowing from.’ " Krieger v. Wilson Corp., 2006-NMCA-034, ¶ 14, 139 N.M. 274, 131 P.3d 661, 666 (quoting Baca v. New Mexico State Highway Dep't, 1971-NMCA-087, ¶ 14, 82 N.M. 689, 486 P.2d 625, 628 ). In analyzing the term in an......
  • Evanston Ins. Co. v. Desert State Life Mgmt.
    • United States
    • U.S. District Court — District of New Mexico
    • January 16, 2020
    ...‘originating from,’ ‘having its origin in,’ ‘growing out of’ or ‘flowing from.’ " Krieger v. Wilson Corp., 2006-NMCA-034, ¶ 14, 139 N.M. 274, 131 P.3d 661, 666 (quoting Baca v. New Mexico State Highway Dep't, 1971-NMCA-087, ¶ 14, 82 N.M. 689, 486 P.2d 625, 628 ). In analyzing the term in an......
  • CHISHOLM'S VILLAGE PLAZA v. TRAVELERS COMM. INS.
    • United States
    • U.S. District Court — District of New Mexico
    • August 16, 2022
    ...'originating from,' 'having its origin in,' 'growing out of' or 'flowing from.'" Krieger v. Wilson Corp., 2006-NMCA-034, ¶ 14, 139 N.M. 274, 279, 131 P.3d 661, 666 (quoting Baca v. N.M. State Highway Dep't, 1971-NMCA-087, ¶ 14, 82 N.M. 689, 486 P.2d 625, 628). In analyzing the term in an in......
  • Request a trial to view additional results
5 books & journal articles
  • Chapter 3
    • United States
    • Full Court Press Business Insurance
    • Invalid date
    ...New Hampshire: Webster v. Acadia Insurance Co., 156 N.H. 317, 934 A.2d 567 (2007). New Mexico: Krieger v. Wilson Corp., 139 N.M. 274, 131 P.3d 661 (N.M. App. 2005). New York: Jahier v. Liberty Mutual Group, 64 A.D.3d 683, 883 N.Y.S.2d 283 (N.Y. App. Div. 2009); Travelers Indemnity Co. v. Co......
  • CHAPTER 5 Comprehensive or Commercial General Liability (CGL) Insurance: Coverage A for "Bodily Injury" or "Property Damage" Liabilities
    • United States
    • Full Court Press Insurance for Real Estate-Related Entities
    • Invalid date
    ...Soo Line Railroad Co. v. Brown’s Crew Car of Wyoming, 694 N.W.2d 109 (Minn. App. 2005). New Mexico: Krieger v. Wilson Corp., 139 N.M. 274, 131 P.3d 661 (N.M. App. 2005). Wisconsin: 1325 North Van Buren, LLC v. T-3 Group, Ltd., 716 N.W.2d 822 (Wis. 2006) (policy can provide coverage for cont......
  • Chapter 5
    • United States
    • Full Court Press Business Insurance
    • Invalid date
    ...Soo Line Railroad Co. v. Brown’s Crew Car of Wyoming, 694 N.W.2d 109 (Minn. App. 2005). New Mexico: Krieger v. Wilson Corp., 139 N.M. 274, 131 P.3d 661 (N.M. App. 2005). Wisconsin: 1325 North Van Buren, LLC v. T-3 Group, Ltd., 716 N.W.2d 822 (Wis. 2006) (policy can provide coverage for cont......
  • CHAPTER 3 The Insurance Contract
    • United States
    • Full Court Press Insurance for Real Estate-Related Entities
    • Invalid date
    ...New Hampshire: Webster v. Acadia Insurance Co., 156 N.H. 317, 934 A.2d 567 (2007). New Mexico: Krieger v. Wilson Corp., 139 N.M. 274, 131 P.3d 661 (N.M. App. 2005). New York: Jahier v. Liberty Mutual Group, 64 A.D.3d 683, 883 N.Y.S.2d 283 (N.Y. App. Div. 2009); Travelers Indemnity Co. v. Co......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT