Oakes v. Monongahela Power Co., No. 13362

• Court: Supreme Court of West Virginia
• Writing for the Court: CAPLAN; NEELY
• Citation: 158 W.Va. 18,207 S.E.2d 191
• Parties: Ronnie Lee OAKES and Gaither S. Oakes et al. v. MONONGAHELA POWER COMPANY et al. v. UNION BOILER REPAIR, FABRICATION & ERECTION COMPANY.
• Docket Number: No. 13362
• Decision Date: 30 July 1974

Page 191

207 S.E.2d 191 158 W.Va. 18 Ronnie Lee OAKES and Gaither S. Oakes et al.
v.
MONONGAHELA POWER COMPANY et al.
v.
UNION BOILER REPAIR, FABRICATION & ERECTION COMPANY. No. 13362. Supreme Court of Appeals of West Virginia. July 30, 1974.
Dissenting Opinion Aug. 1, 1974.

Page 192

Syllabus by the Court

1. Where, in an indemnification agreement, the liability of the indemnitor is premised on the fact that the injury for which the indemnitee is held liable was caused by an act or omission of said indemnitor, the issue of whether the injury was caused by such act or omission must be properly adjudicated before such liability attaches.

2. It is reversible error for the trial court to enter summary judgment against a third-party defendant when the third-party complaint has been severed from the original action and continued for trial at a later date when a genuine issue of fact has not been resolved.

3. 'If a genuine issue as to a material fact is raised in any action, a summary judgment under the provisions of Rule 56, R.C.P. can not be granted.' Point 2, Syllabus, Haga v. King Coal Chevrolet Company, 151 W.Va. 125, 150 S.E.2d 599.

[158 W.Va. 19] Herschel Rose and Duane Southern, Fairmont, Greene, Ketchum & Baker, James D. Nash, Jr., Huntington, for Union Boiler Repair.

Furbee, Amos, Webb & Critchfield, Alfred J. Lemley, Fairmont, for Monongahela Power Co. and others.

CAPLAN, Chief Justice:

This is an appeal by Union Boiler Repair, Fabrication & Erection Company, Inc. from a final order of the Circuit Court of Monongalia County entered on October 30, 1972. That order was entered in an action wherein Union Boiler was impleaded as a third-party defendant by Monongahela Power Company, The Potomac Edison Company, and Duquesne Light Company, sometimes hereinafter referred to as the power companies, in an action in which such companies, as defendants, were held liable for the negligent injury of the plaintiffs. The judgment against the power companies was affirmed by this Court on appeal.

In the original actions which were consolidated for trial the plaintiffs, Ronnie Lee Oakes and Nancy Diane Oakes and Gaither S. Oakes and Mildred Oakes, sought the recovery of damages against the three power companies for personal injuries which they alleged were sustained when Ronnie Lee Oakes and Gaither S. Oakes were burned by hot fly ash in an electric generating plant owned and operated by the said power companies at Ft. Martin in Monongalia County. The plaintiffs were employees of Union Boiler which was in the process of performing certain maintenance on and repairs to a generating plant under a contract between the power companies and said Union Boiler.

In the original actions the plaintiffs claimed that the electric companies were negligent in failing to provide the plaintiffs with a reasonable safe place to work. Impleading Union Boiler as a third-party defendant in the [158 W.Va. 20] consolidated action the power companies claimed that they had warned Union Boiler of the location and presence of the hot fly ash; that Union Boiler had failed to transmit this warning to its employees, the plaintiffs; that as a result of such failure the plaintiffs were injured; and that the power companies were therefore entitled to full indemnity for any liability on their part to the plaintiffs under the indemnity provision of the aforesaid repair and maintenance contract. That provision reads as follows:

12. INDEMNIFICATION: Seller shall indemnify, save harmless, and defend buyer from all claims, losses, liabilities, and expenses arising out of bodily injury, death, or damage to property occurring in connection with any act or omission of Seller, its agents, employees, representatives, or subcontractors.

A determination of the issues arising on the third-party complaint was deferred by stipulation of the parties, as reflected by an order entered on June 19, 1972, until after the trial of the issues between the plaintiffs and the power companies. That trial resulted

Page 193

in a jury verdict in favor of Ronnie Lee Oakes in the amount of $60,000.00 and a verdict in favor of Gaither Oakes in the amount of $75,000.00 upon which judgment was entered on June 26, 1972.

Thereafter, but prior to the payment of these amounts, the power companies, relying on the indemnification provision of the contract moved the court for judgment against Union Boiler. The trial court upon the evidence adduced at the trial and without any further proceedings, by its order dated October 30, 1972 directed that the third-party plaintiffs, the power companies, 'recover of and from the third party defendant the sum of $75,000.00 plus interest representing the judgment obtained by the plaintiff, Gaither Oakes against the defendants and third party plaintiffs and also the sum of $60,000.00 plus interest representing the sum recovered by plaintiff Ronnie Oakes against the defendants and third party plaintiffs * * *'. It is from this judgment of [158 W.Va. 21] October 30, 1972 that Union Boiler, the third-party defendant, prosecutes this appeal.

On this appeal Union Boiler assigns as error (1) the refusal of the court to grant its motion for summary judgment; and (2) the granting of the motion of the power companies as reflected by the order of October 30, 1972.

In support of its contention that its motion for summary judgment should have been granted, Union Boiler points out that the plaintiffs' claims against the power companies were predicated solely upon the alleged failure of the power companies to furnish said plaintiffs a safe place to work. In other words, the claims and recovery were based solely on the negligence of the power companies. The appellant, Union Boiler, further points out that by the answer of the power companies in the original action the power companies offered affirmatively the following defenses: that the plaintiffs were contributorily negligent; that the plaintiffs assumed the risk of their...