Paul Krebs and Associates v. Matthews & Fritts Const. Co., Inc.
| Decision Date | 10 March 1978 |
| Citation | 356 So.2d 638 |
| Parties | PAUL KREBS AND ASSOCIATES v. MATTHEWS AND FRITTS CONSTRUCTION CO., INC. 77-90. |
| Court | Alabama Supreme Court |
Bibb Allen of London, Yancey, Clark & Allen, Birmingham, for appellant.
Lyman H. Harris, Carol A. Smith of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
Robert M. Girardeau, Birmingham, for Board of Water & Sewer Commissioners for the City of Florence and James Hughes, Jr., amicus curiae.
In 1970, the Board of Water and Sewer Commissioners of the City of Florence and Paul Krebs and Associates, an engineering firm, advertised for bids on a proposed sewer project. Matthews and Fritts Construction Company was the successful bidder.
Garvin Clemons was an employee of Matthews and Fritts and was injured in the course of his employment. Clemons filed suit against Paul Krebs and Associates and several other defendants. His complaint charged Krebs and others with negligence proximately resulting in his injury. He alleged that Krebs, as engineer over the job and pursuant to contract "had the authority to control the job and all activity on said job."
Subsequent to the filing of this suit, Krebs filed a third-party complaint against Matthews and Fritts, Clemons' employer, claiming indemnity from Matthews and Fritts for any judgment ultimately obtained by Clemons against Krebs. Matthews and Fritts filed a motion for summary judgment against Krebs in the third-party action, based upon depositions, etc. which established without dispute that Matthews and Fritts was the employer of plaintiff Clemons when the accident occurred. As such, Matthews and Fritts claimed immunity from suit by Krebs as a matter of law.
The trial court granted Matthews and Fritts' motion for summary judgment, severed the third-party action, and Krebs appealed from the order granting summary judgment against it.
Squarely presented is whether an employer's statutory immunity from suits on account of injury to employees under § 25-5-53, 1975 Code, protects the employer from suits by third parties seeking indemnity (under contractual provisions) from claims arising out of injuries sustained by employees of the same employer.
If the employer is protected by the statute from such suits, then we are not confronted with a case of construction of specific contractual terms, but rather the case is one of statutory construction.
§ 25-5-53, Code 1975 (formerly Title 26, § 272, Code of Alabama 1940, Recompiled 1958), provides:
". . . Except as provided in this article and article 2, as the case may be, of this chapter, no employer included within the terms of this chapter . . . shall be held civilly liable for any personal injury to or death of any workman who is an employee of the same employer and whose injury or death is due to an accident while engaged in the service or business of the employer, the cause of which accident originates in the employment. . . ." (Emphasis Supplied)
In at least three cases, this court has held that where a third party (here Krebs) is charged with active negligence in the injury of an employee while engaged in his employment, the employer is not subject to suit at the instance of the third party. In Sherman Concrete Pipe Machinery, Inc. v. Gadsden Concrete & Metal Pipe Co., Inc., 335 So.2d 125 (Ala.1976), the employee filed suit against Sherman. Sherman filed a third-party claim against Gadsden (the employer) alleging that its active negligence was the proximate cause of the employee's injury and sought indemnity for any sums that might be adjudged against Sherman. Speaking through Justice Faulkner, the court said:
Sherman did not involve an express contract of indemnity. However, Gunter v. U. S. Fid. & Guar. Co., 340 So.2d 749 (Ala.1976), which did, is to the same effect, as is the recent case of Robins Engineering, Inc. v. Cockrell, 354 So.2d 1 (Ala.1977), which also involved a contractual indemnity provision.
In Robins Engineering, Inc. v. Cockrell, supra, the court said of Gunter v. U. S. Fid. & Guar. Co., supra:
"In our recent decision, Gunter v. U. S. Fid. and Guar. Co., 340 So.2d 749 (Ala.1977), a unanimous court held (per Faulkner, J.) that a general contractor, charged with active negligence in furnishing and maintaining a scaffold from which a young...
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...... Paul Krebs & Associates v. Matthews & Fritts ... See Redwing Carriers, Inc. v. Crown Central Petroleum Corp., 356 So.2d ......
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