New Zealand Kiwifruit Marketing v. Wilmington

• Decision Date: 14 June 1993
• Docket Number: Civ. A. No. 91-580-JLL.
• Citation: 825 F. Supp. 1180
• Parties: NEW ZEALAND KIWIFRUIT MARKETING BOARD, Plaintiff, v. CITY OF WILMINGTON, McFoy Refrigeration Company, Perley-Halladay Associates and Devault Refrigeration Services, Inc., Defendants.
• Court: U.S. District Court — District of Delaware

825 F. Supp. 1180

NEW ZEALAND KIWIFRUIT MARKETING BOARD, Plaintiff, v. CITY OF WILMINGTON, McFoy Refrigeration Company, Perley-Halladay Associates and Devault Refrigeration Services, Inc., Defendants.

Civ. A. No. 91-580-JLL.

United States District Court, D. Delaware.

June 14, 1993.

COPYRIGHT MATERIAL OMITTED

David E. Brand of Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, DE; James P. Krauzlis and Edward C. Radzick of Donovan Parry Walsh & Repetto, New York City, of counsel, for plaintiff.

Jeffrey S. Goddess of Rosenthal, Monhait, Gross & Goddess, P.A., Wilmington, DE; James F. Young and Mary Elisa Reeves of Krusen Evans and Byrne, Philadelphia, PA, of counsel, for defendant City of Wilmington.

Raymond Cobb of Goldfein & Joseph, Wilmington, DE, for defendant McFoy Refrigeration, Inc.

John D. Balaguer of White & Williams, Wilmington, DE, for defendants Perley-Halladay Associates and Devault Refrigeration Services, Inc.

MEMORANDUM OPINION

LATCHUM, Senior District Judge.

I. INTRODUCTION

Defendant, City of Wilmington ("City"), has brought this motion, pursuant to Rule 56 of the Federal Rules of Civil Procedure, seeking summary judgment against the crossclaims of codefendants, McFoy Refrigeration Inc., Perley-Halladay Associates, and Devault Refrigeration Services, Inc., (hereinafter "McFoy", "Perley-Halladay" and "Devault" or, collectively, "the codefendants"). (Docket Item "D.I." 71.) On October 22, 1991, plaintiff, New Zealand Kiwifruit Marketing Board, commenced this action seeking damages for the loss in value of a shipment of kiwifruit which was partially destroyed while in a port-warehouse facility operated by defendant, City of Wilmington. (D.I. 1 at 3.)

On June 22, 1992, defendant, City of Wilmington, filed a motion for summary judgment with this Court arguing that all of plaintiff's claims against the City were barred by a one-year statute of limitations included in the general tariff of the Port of Wilmington, and, alternatively, that any tort claim against the City would be barred by the County and Municipal Tort Claims Act (the "Tort Claims Act"), 10 Del.C. §§ 4010 et seq. (D.I. 38.) This Court filed a memorandum opinion and order on September 29, 1992, granting that motion (D.I. 57 and 58); the Court based its decision on the one-year statute of limitations included in the general tariff of the Port of Wilmington — which tariff the Court held constituted the applicable contract between the New Zealand Kiwifruit Marketing Board and the City of Wilmington. New Zealand Kiwifruit Marketing Board v. City of Wilmington, 806 F.Supp. 501 (D.Del.1992). Since the Court based its decision on the statute of limitations, it never reached the question of the Tort Claims Act.

Each codefendant has filed crossclaims for both contribution and indemnification. Those crossclaims failed to state the legal grounds upon which their claims for indemnification were based. However, in their brief, Perley-Halladay and Devault¹ stated that their "crossclaims for indemnification arise from a common-law right to indemnification in tort and an implied or quasi-contractual right to indemnification in contract." (D.I. 75 at 8.) It is apparent from McFoy's brief that it has based its claim for indemnification solely in tort; McFoy has not asserted an implied-in-contract theory. None of the codefendants has asserted a claim based upon express contractual indemnification.

In the present motion, the City argues, inter alia, that the Tort Claims Act bars both the contribution and the indemnification-in-tort crossclaims and that all indemnification claims are inapplicable to the situation at hand. Thus the City argues it is entitled to summary judgment on those crossclaims as a matter of law. Codefendants, McFoy, Perley-Halladay and Devault argue that the contribution and indemnification in tort claims are not barred by the Tort Claims Act because they fall into two of the statutory exceptions to the Act, namely: the "equipment" exception and/or the "public building" exception. 10 Del.C. § 4012(1) and (2). In addition, Perley-Halladay and Devault maintain that the quasi-contractual theory of indemnification is applicable to this case. For the reasons stated below, this Court finds that the claims in this case do meet the requirements of the "public building" exception to the Torts Claims Act as recently set forth by the Delaware Supreme Court, and thus this Court will deny the City of Wilmington's motion for summary judgment on the contribution crossclaims. For the reasons stated below, this Court also finds that none of the indemnification claims that have been asserted by the codefendants against the City are applicable to the facts of this case and thus will grant summary judgment to the City on the indemnification claims.

The Court has jurisdiction over plaintiff's claim pursuant to 28 U.S.C. § 1332 and the Court has jurisdiction over the crossclaims pursuant to 28 U.S.C. § 1367.

II. FACTS

The facts regarding the spoilage of the kiwifruit are set out in more complete detail in an earlier opinion. New Zealand Kiwifruit Marketing Board v. City of Wilmington, 806 F.Supp. 501 (D.Del.1992). For the purposes of this motion the relevant facts are as follows. On or about July 5 or 6, 1990, plaintiff's shipment of 2,961 pallets of fresh kiwifruit arrived at the Port of Wilmington and were placed in the Port's refrigerated storage facilities; it is undisputed that the Port and its storage facilities are owned and operated by the City of Wilmington. The City of Wilmington allegedly has contracts with codefendants for various services regarding the refrigeration facilities, in particular, codefendants provide "refrigeration installation, maintenance, temperature control and monitoring services in connection with the refrigerated areas of the storage facilities operated by the City of Wilmington." (D.I. 1 at ¶ 12; D.I. 8 at ¶ 12; D.I. 4 at ¶ 12.)²

Plaintiff alleges that although the Port had been instructed to keep the kiwifruit at a temperature of not less than 32 degrees Fahrenheit, on or about July 9, 1990, 200 of the pallets of kiwifruit were cooled to a temperature of approximately 25 degrees Fahrenheit and were thereby destroyed.

While the plaintiff's original complaint alleges claims against defendant, City of Wilmington, for breach of contract, breach of bailment and negligence,³ plaintiff's complaint alleged only negligence claims against the codefendants. (D.I. 1 at ¶ 14.) Devault and Perley-Halladay answered plaintiff's complaint by denying negligence and initiating crossclaims against both the City of Wilmington and McFoy for contribution pursuant to the Contribution Among Tortfeasors Law, 10 Del.C. § 6301 et seq., and for indemnification. (D.I. 2 at ¶¶ 16 & 17; D.I. 4 at ¶¶ 16 & 17.) McFoy answered plaintiff's complaint by denying negligence, initiating crossclaims against Perley-Halladay, Devault and the City of Wilmington for contribution and indemnification and stating that it "is entitled to have the relative degrees of fault determined in accordance with Title 10, Chapter 63, of the Delaware Code." (D.I. 7 at 6.)

On January 12, 1993, defendant, City of Wilmington, filed a motion for summary judgment against the crossclaims stating: (1) that because this Court had dismissed the plaintiff's claim against the City, the City could not share a common liability to the plaintiff with the other defendants and thus could not be liable for contribution; and (2) that the County and Municipal Tort Claims Act, 10 Del.C. § 4011(a), also bars the crossclaims for contribution and indemnification. (D.I. 71.)

The codefendants requested permission to make their opposition to City of Wilmington's motion by incorporating the arguments regarding the Tort Claims Act made by plaintiff, New Zealand Kiwifruit Marketing Board, in opposition to the City's first motion for summary judgment. The Court, by letter, granted permission to incorporate plaintiff's arguments regarding the Tort Claims Act but requested that briefs be submitted which fully addressed the contribution and indemnification issues. (D.I. 73.) The parties have since complied with the Court's request. (D.I. 74; D.I. 75; D.I. 76; and D.I. 78.)

Although the City of Wilmington has moved for summary judgment on all crossclaims of all codefendants, there is an overlap in both the theories and the alignment of codefendants in opposition to the motion. Accordingly, the Court will first address the crossclaim of contribution against all codefendants followed by the crossclaim for indemnification in tort as it applies to all codefendants. As a final matter, the Court will address the implied contractual indemnification crossclaim of codefendants Perley-Halladay and Devault.

III. STANDARD OF REVIEW

Rule 56(c) of the Federal Rules of Civil Procedure provides that a party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The appropriate inquiry is whether there is a need for a trial. "In other words, are there any genuine factual issues that properly can be resolved only by a finder of fact because they may be reasonably resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

In a motion for summary judgment it is the party seeking summary judgment who bears "the initial responsibility of informing the Court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265...