M.M. Sundt Const. Co. v. Contractors Equipment Co.
| Citation | 656 S.W.2d 643 |
| Decision Date | 10 August 1983 |
| Docket Number | No. 08-82-00228-CV,08-82-00228-CV |
| Parties | M.M. SUNDT CONSTRUCTION COMPANY, Appellant, v. CONTRACTORS EQUIPMENT COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Tony Dirksmeyer, Dirksmeyer & Harrington, Irving, Harvey L. Davis, Austin, for appellant.
Jack Brewster, Brewster & Mayhall, Norman C. Peyton, El Paso, for appellee.
Before WARD, OSBORN and SCHULTE, JJ.
M.M. Sundt Construction Company appeals from a judgment, in a bench tried case, in which it is ordered to indemnify the lessor of a crane, which Sundt had leased, for damages arising out of an accident which occurred when the crane was being returned to the lessor. We affirm.
In 1978, Contractors Equipment Company, as lessor, and M.M. Sundt, as lessee, entered into a rental agreement whereby Contractors leased to Sundt one Grove RT-58 crane. The indemnity provision is in paragraph 7 of the agreement and it provides:
7. LIABILITY. LESSEE assumes all risk, responsibility and liability arising from the possession, operation and use of the Equipment howsoever imposed, including damages for injury and death to persons and property howsoever arising therefrom or because thereof. LESSEE shall indemnify, save and hold LESSOR and its assigns harmless from any and all of the following, whether the same be actual or alleged: all claims, liens for storage, labor and materials and all loss of and damage to said Equipment and loss, damage, claims, penalties, liability and expense, including attorney's fees, howsoever arising or incurred because of said Equipment or the storage, maintenance, use, operation or return to LESSOR thereof.
With regard to the delivery and return of the crane, paragraph 4 of the agreement provides:
4. DELIVERY AND RETURN. Freight from LESSOR to LESSEE will be paid by LESSEE who agrees to return the Equipment, freight prepaid, to LESSOR in the same condition as when received (only reasonable wear and tear resulting from proper use of the Equipment excepted) and LESSEE agrees to pay for any repairs necessary to restore the Equipment to such condition.
After Sundt completed its use of the crane, it notified Contractors who called Jesus Ontiveros, an independent contractor, to pick up the crane and haul it back to Contractors' yard in El Paso. The crane was loaded on a trailer by Mr. Ontiveros with the help of an employee of Sundt Construction Company. Mr. Ontiveros then drove onto the Interstate highway in El Paso and started to the Contractors' yard on the East side of town. The crane did not clear the first overpass and was knocked off the trailer. Mr. and Mrs. Plattor, who were traveling on the highway, collided with the crane and sustained serious personal injuries. Their suit for damages was settled for $470,000.00, and Contractors paid $150,000.00 of that amount. This suit resulted in Contractors recovering that sum plus its attorney's fees and expenses from Sundt under the indemnity provisions of the rental agreement. This indemnity suit was severed from a separate suit involving damages to the State of Texas overpass in which the jury found that as between Ontiveros, Contractors and Sundt, that Sundt's negligence alone proximately caused the accident.
It was stipulated in this case that Sundt declined to take over the defense of the suit against Contractors and further that the amount of $150,000.00 paid in settlement of the suit was reasonable and paid in good faith. The only issue left for trial was whether Sundt was liable to Contractors under the indemnity clause and the reasonableness of Contractors' attorney's fees and expenses in defending the suit filed by Mr. and Mrs. Plattor.
The Appellant Sundt asserts in its first point of error that there can be no recovery by Contractors under the rental agreement because the indemnity provisions are not expressed in clear and unequivocal language. Sundt relies upon the holdings in Fireman's Fund Insurance Company v. Commercial Standard Insurance...
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