Nucor Steel Tuscaloosa, Inc. v. Zurich Am. Ins. Co.
| Citation | 343 So.3d 458 |
| Decision Date | 25 June 2021 |
| Docket Number | 1190545 |
| Parties | NUCOR STEEL TUSCALOOSA, INC. v. ZURICH AMERICAN INSURANCE COMPANY and Onin Staffing, LLC, a division of the Onin Group, Inc. |
| Court | Supreme Court of Alabama |
343 So.3d 458
NUCOR STEEL TUSCALOOSA, INC.
v.
ZURICH AMERICAN INSURANCE COMPANY and Onin Staffing, LLC, a division of the Onin Group, Inc.
1190545
Supreme Court of Alabama.
June 25, 2021
Jonathan S. Harbuck of Harbuck Keith & Holmes LLC, Birmingham; and Wilbor J. Hust, Jr., of Zeanah Hust Summerford & Williamson, LLC, Tuscaloosa, for appellant.
Thomas M. O'Hara of O'Hara Watkins, LLC, Daphne, for appellee Zurich American Insurance Company.
Warren B. Lightfoot, Jr., and Mitchell D. Greggs of Maynard Cooper & Gale, P. C., Birmingham, for appellee Onin Staffing, LLC.
BOLIN, Justice.
Nucor Steel Tuscaloosa, Inc. ("Nucor"), appeals from the Tuscaloosa Circuit Court's summary judgment in favor of Zurich American Insurance Company ("Zurich") and Onin Staffing, LLC, a division
of the Onin Group, Inc. ("Onin"), on claims asserted by Nucor arising from an alleged breach of an indemnification agreement.
Nucor operates a steel-manufacturing facility in Tuscaloosa. Nucor had an internship program that offered part-time work to technical-school students, who, as part of the internship program, earned both academic credit and work experience relevant to their vocational training. On August 20, 2010, Nucor entered into a "Temporary Services Agency Agreement" ("the TSA Agreement") with Onin, a personnel-staffing agency, whereby Onin was to manage the employment of the technical-school students selected by Nucor for its internship program, including providing payroll services, drug testing, and basic orientation regarding Nucor's policies to the interns. The TSA Agreement provided, in relevant part:
"1. Scope of Work. [Onin] shall hire, employ and provide to Nucor personnel to perform the labor for the work ....
"....
"7. Policies of the Facility. [Onin] shall be solely responsible for ensuring that [Onin's] Personnel are educated in the relevant policies of the Facility ....
"....
"10. Indemnification. To the fullest extent allowed by law, [Onin] shall defend (but only if so elected by Nucor in its sole discretion), indemnify and hold harmless Nucor ... from and against all proceedings, claims, damages, liabilities, losses, costs and expenses (including, but not limited to, attorneys’ fees and expenses, including any attorneys’ fees and expenses incurred by a Nucor indemnified party in enforcing [Onin's] indemnification obligations hereunder) (collectively, ‘damages’), in any manner arising out of, related to, or resulting from the performance of the work hereunder, provided that any such damages are caused in whole or in part by any act or omission of [Onin], any [of Onin's] Personnel, any subcontractor, or anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, including, but not limited to any negligent, grossly negligent or willful acts or omissions, and regardless of whether or not (A) any such damages are caused in part by the concurrent negligence of a Nucor Indemnified Party or any other acts or omissions (including, without limitation, any negligent acts or omissions) of a Nucor indemnified party or (B) a Nucor Indemnified Party would otherwise be liable for such damages under a statutory or common law strict liability standard."
A separate section of the TSA Agreement entitled "Temporary Services Agency Additional Terms and Conditions" provided, in relevant part:
"Safety Policy
"Safety on the job site is of paramount importance to Nucor. Accordingly, [Onin] agrees to use its best efforts to insure the safety of all [of Onin's] Personnel, all other persons who may be on the job site or affected by the work performed by [Onin], and any other property on or adjacent to the job site. [Onin] shall comply with, and give all notices required by, the applicable provisions of any federal, state, county, and municipal laws, ordinances, or regulations bearing on the safety of persons or property or their protection from damage, injury, or loss, including but not limited to the applicable requirements of [the Occupational Safety and Health Administration]."
Finally, pursuant to the "Additional Terms and Conditions" section of the TSA Agreement, Onin was required to provide comprehensive general-liability insurance coverage
to Nucor in the amount of $2,000,000, with Nucor being named as an additional insured on the general-liability policy. Onin provided the general-liability policy as required by the TSA Agreement. The general-liability policy was issued by Zurich and contained an aggregate limit of $2,000,000 and a per-occurrence limit of $1,000,000. The general-liability policy provided, in part:
"Name of Additional Insured Person(s) Or Organization(s):
"Any person or organization who you are required to add as an additional insured on this policy under a contract or agreement shall be an insured, but only with respect to that person's or organization's liability arising out of your operations as a ‘Staffing Service’ or premises owned by or rented to you.
"Section II - Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for ‘bodily injury’, ‘property damage’ or ‘personal and advertising injury’ caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf:
"A. In the performance of your ongoing operations."
Nucor was named as an additional insured and as a certificate holder under the general-liability policy, as required by the TSA Agreement.
Korey Ryan was a student at Shelton State Community College in 2014. Ryan applied for Nucor's internship program through Shelton State. Ryan was interviewed by Nucor personnel and was accepted into the internship program. Ryan was then referred to Onin to complete the administrative requirements for participating in the internship program. Ryan began his internship with Nucor on August 18, 2014.
Ryan was assigned to the ESAB cutting table at the Nucor facility. The ESAB cutting table is used to cut large plates of steel with a plasma torch. The large steel plates are placed on the cutting table by a 30-ton gantry crane that travels back and forth along a linear floor-rail system from the center of the Nucor warehouse to a position "straddling" and directly above the cutting table. The plasma torch is cooled by filtered water to prevent it from overheating. If the water filter clogs, the plasma torch will not operate properly. The water filter, with its fittings and pipes, was located on a wall in the Nucor warehouse. The gearbox of the gantry crane is located on the same side of the crane as the wall with the water filter. The gearbox extended 15 1/2 inches from the crane toward the wall with the water filter. The distance between the bottom of the gearbox and the concrete floor was 3 5/8 inches. The space between the gearbox and the wall in the area of the water filter was 27 inches. However, the space between the gearbox and the wall diminished as the crane traveled past the water filter because the filter and its fittings and piping protruded from the wall toward the crane. The gearbox was not visible from the crane operator's station because the gearbox was located on the opposite side of the crane. The crane was equipped with flashing lights and a buzzer that would operate when the crane moved.
Ryan was assigned to work with Ricky Edwards, a Nucor employee, when he began his internship. Edwards trained Ryan and directed his work on the cutting table. Edwards would operate the gantry crane, moving the steel plates on to and off of the cutting table, while Ryan operated the cutting table.
On October 23, 2014, Ryan was killed while working in the course of his duties at the Nucor facility. On the date of Ryan's death, Ryan and Edwards were tasked with changing out the water filter for the cutting table because the cutting table was experiencing poor water quality. Edwards testified that he told Ryan that a sheet of steel needed to be placed on the cutting table before they changed the water filter. Edwards stated that he directed Ryan to stand in a certain area in front of the water filter so that he would be clear of the moving crane. Edwards testified that he mounted the crane operator's station and picked up the steel plate. Edwards stated that he then looked to his left before moving the crane in the opposite direction to make sure Ryan was standing where he had told him to stand. Edwards testified that he saw the "front of [Ryan's] hat" and "knew that he could move [the crane] because [Ryan] was standing where [they] had talked about." Edwards stated that Ryan was a "very good" employee and that "he did not have any reason not to trust him to stand where we had talked about." Edwards stated that he then turned his attention back to the load and began moving the crane. Edwards testified that he then heard a yell and stopped the crane. According to Edwards, he left the crane operator's station to check on Ryan and found Ryan unconscious and lying on the concrete floor against a building support beam. The record reflects that Ryan's right work boot was struck by and became caught underneath the gearbox as the crane was moving and that Ryan was dragged by the crane along the concrete floor through the narrow passageway between the crane and the warehouse wall, where he was crushed to death against a building support beam.
Edwards testified that, for Ryan's boot to have become caught underneath the gearbox, Ryan had to have taken a "step out" of the safe area toward to crane because, Edwards said, the "crane is not going to curve over there and get him." However, when asked if the location where Ryan had been asked to stand "was not the best choice," Edwards responded by stating: "[I]t probably wasn't the best place, but it [was] a safe place." Further, Edwards admitted that he had never had a conversation with Ryan about how the gearbox on the crane protrudes away from...
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