Metropolitan Paving Co. v. Gordon Herkenhoff & Associates, Inc.

• Decision Date: 08 July 1959
• Docket Number: No. 6494,6494
• Citation: 341 P.2d 460,1959 NMSC 56,66 N.M. 41
• Parties: METROPOLITAN PAVING COMPANY, Inc., a Corporation, Defendant-Appellant, v. GORDON HERKENHOFF & ASSOCIATES, INC., Third-Party Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 460

341 P.2d 460

66 N.M. 41

METROPOLITAN PAVING COMPANY, Inc., a Corporation, Defendant-Appellant, v. GORDON HERKENHOFF & ASSOCIATES, INC., Third-Party

Defendants-Appellees.

No. 6494.

Supreme Court of New Mexico.

July 8, 1959.

Rodey, Dickason, Sloan, Akin & Robb, Keleher & McLeod, Russell Moore, Albuquerque, for appellant.

Howard F. Houk, Santa Fe, for appellee.

LUJAN, Chief Justice.

This is an appeal from an order of the district court granting summary judgment for third-party defendant, Gordon Herkenhoff and Associates, Inc., hereafter referred to as Herkenhoff.

On October 3, 1957, plaintiffs (who are not parties to this appeal) filed a complaint against the City of Santa Fe, hereinafter referred to as City and the Metropolitan Paving Company, Inc., hereinafter referred to as Metropolitan.

The complaint alleged that sometime propr to August 24, 1957, Metropolitan constructed a detour extending from Alameda Street in the City across the Santa Fe River over which area the City had control. The complaint further alleged that Metropolitan in constructing the detour installed two iron or steel culverts to provide a channel for water flowing down the river, which culverts were then covered with dirt fill and a black-top surface, and that the culverts were so installed as to change the channel of the river and limit its carrying capacity. The complaint went on to allege that due to the negligence of Metropolitan and the City the culverts became clogged and water which would have run down the original channel of the river had the detour not been constructed overflowed causing damage to plaintiffs' properties.

The answer by Metropolitan constituted, in effect, a general denial, and as affirmative defenses alleged contributory negligence and that any damage was the result of an 'Act of God'. In addition, it alleged that if there was any negligence which caused damage to plaintiffs' properties it was negligence on the part of other agents for the City.

The City denied generally the allegations of plaintiffs' complaint, and as affirmative defenses alleged contributory negligence, assumption of risk and that any injury or damage to plaintiffs' properties was due to an unavoidable accident or an 'Act of God'.

The City filed a cross-claim against Metropolitan alleging that it had entered into a contract with Metropolitan for the construction of a bridge across the Santa Fe River and that under the terms of this contract Metropolitan had agreed to indemnify and save the City harmless from all suits brought against the City by reason of the construction of the bridge.

The City also filed a third-party complaint against Herkenhoff, the engineering firm that had prepared the plans for the construction of the bridge including the detour. The City alleged that Herkenhoff had prepared the plans and in them had specified the type and size of the culverts which Metropolitan subsequently installed. The City further alleged that should it be found that the culverts called for under the Herkenhoff plans and specifications were insufficient, and such insufficiency caused the overflow, as alleged by plaintiffs, then the proximate cause of the damage was the failure of Herkenhoff to properly design the construction and Herkenhoff's failure to require culverts which would be sufficient to carry the water flowing down the Santa Fe River.

Thereafter, Metropolitan filed a counterclaim against Herkenhoff with substantially the same allegations as contained in the third-party complaint of the City.

Herkenhoff filed a motion to dismiss the third-party complaint of the City and the counterclaim of Metropolitan, or, in the alternative, for summary judgment. Attached to and in support of this motion was an affidavit of Gordon Herkenhoff, President of Gordon Herkenhoff & Associates, Inc. The trial court granted Herkenhoff's motion for summary judgment and Metropolitan appeals therefrom.

According to the affidavit executed by Herkenhoff (and the facts as stated in this affidavit have not been controverted), a contract was entered into between Metropolitan and the City on March 27, 1957, which contained certain indemnity provisions for the protection of both Herkenhoff and the City.

The sole question to be answered on this appeal is whether these indemnity provisions have the effect of relieving the indemnitees from liability for their own negligent acts.

Appellant makes no argument that in a case such as this a contract which purports to indemnify a person against his own negligence is void as against public policy. However, he does urge, in effect, that a contract will not be construed as indemnifying the indemnitee against his own negligence unless the contract expressly so provides. Appellee, on the other hand, contends that the contract does not have to refer expressly to indemnitee's negligence as a prerequisite to his being held harmless for his own negligence, so long as the intention to save him harmless in such an eventuality is clear and unequivocal. With this generally accepted rule appellee has no quarrel. Nor do we. See, e. g., Princemont Const. Corp. v. Baltimore & Ohio R. Co., D.C.Mun.App., 131 A.2d 877.

Examining the indemnity provisions contained in the contract between Metropolitan and the City of Santa Fe, we find that one such provision is as follows:

'30. Damages. The Contractor hereby expressly binds himself to indemnify and save harmless the City and its Engineer from all suits and actions of every nature and description brought against the City or any person or persons on account of the construction of this work or by reason of any act of omission, misfeasance, malfeasance of the Contractor or his agents, subcontractors or employees.' (Emphasis added.)

Further, Herkenhoff's affidavit states as follows:

'* * * a construction bond was entered into by Metropolitan Paving Company, Inc., as principal and Union Pacific Insurance Company of Tacoma, Washington, as surety, and made a part of the March 27, 1957 contract aforesaid, wherein said principal and surety bound themselves unto the City of Santa Fe, defendant and Third Party Plaintiff, in the penal sum of $446,634.65 conditioned, among other things, on their defending, indemnifying, and saving harmless the City of Santa Fe against all damages, claims, demands, expense, and charge of every kind (including claims of patent infringement) arising out of the injury or damage to persons or property by reason of said contract and the work thereunder required of him or arising from any act, omission or neglect of said contractor (Metropolitan Paving Company, Inc.), his agents, servants, or employees with relation to said work, and conditioned further upon their delivering the work as therein specified to the City of Santa Fe, completed and free from all liens, encumbrances or claims for labor, material, or otherwise.' (Emphasis added.)

The affidavit also states that a construction bond was required, furnished and conditioned for the protection of appellee Herkenhoff as well as other firms and persons who might be damaged by the work to be done under the contract.

In our opinion the all-embracing language used in the indemnity provisions clearly indicates an intention to save harmless the City and its engineer, the appellee, from all liability incurred in the prosecution of the work, even though it might arise out of their own negligence. To us this is sufficient. We do not feel that an express reference to indemnitee's negligence is necessary as a condition precedent to his being held harmless for his own negligence.

While the decisions in the various jurisdictions are not entirely harmonious on this question, numerous well-reasoned cases construing indemnity provisions substantially the same as the one here involved support us in our conclusion.

The court stated as follows in Stern v. Larocca, 49 N.J.Super. 496, 140 A.2d 403, 407:

'By the overwhelming weight of authority, something less than an express reference in the contract to losses from the indemnitee's negligence as indemnifiable will suffice to make them so if the intent otherwise sufficiently appears from the language and circumstances.'

The Washington court stated this principle as follows in Griffiths v. Henry Broderick, Inc., 27 Wash.2d 901, 182 P.2d 18, 20, 172 A.L.R. 1:

'The appellant stresses the fact that the word 'negligence' does not appear in the indemnity covenant, and contends that it is, therefore, manifest that the indemnity clause of the contract is equivocal. We think counsel's contention is well-answered in Payne v. National Transit Co., D.C., 300 F. 411, 412, 413. The indemnity covenant in that case read as follows: 'Said party of the second part does further agree to indemnify and save harmless the party of the first part from and against all claims, suits, damages, costs, losses, and expenses, in any manner resulting from or arising out of the laying, maintenance, renewal, repair, use, or existence of the said pipe (whether heretofore or hereafter laid), including the breaking of the same or the leaking of oil from the same."

'In holding that the above covenant provided that the indemnitor should indemnify the indemnitee against the indemnitee's own negligence, the court said: 'It is true that the courts have said that,...