Powell v. Interstate Vendaway, Inc.

• Decision Date: 06 December 1972
• Citation: 300 A.2d 241
• Parties: Leon G. POWELL, Plaintiff, v. INTERSTATE VENDAWAY, INC., a Delaware corporation, Defendant and Third-Party Plaintiff, v. CHRYSLER CORPORATION, a Delaware corporation, Third-party Defendant.
• Court: Delaware Superior Court

Page 241

300 A.2d 241

Leon G. POWELL, Plaintiff, v. INTERSTATE VENDAWAY, INC., a Delaware corporation, Defendant and Third-Party Plaintiff, v. CHRYSLER CORPORATION, a Delaware corporation, Third-party Defendant.

Superior Court of Delaware, New Castle County.

Dec. 6, 1972.

Upon motion for summary judgment by third party defendant.

Alfred M. Isaacs, of Flanzer & Isaacs, Wilmington, for Interstate Vandaway.

William J. Taylor, III, of Berg, Taylor & Komissaroff, Wilmington, for Chrysler.

OPINION

TAYLOR, Judge.

Plaintiff, an employee of Chrysler Corp., (Chrysler) was injured while working for Chrysler when a truck operated on Chrysler property by an employee of Interstate Vendaway, Inc. (Vendaway) struck a stack of cartons pinning plaintiff between the cartons and a work table. Plaintiff, while receiving workmen's compensation from Chrysler, sued Vendaway for damages resulting from the injury, claiming negligence on the part of Vendaway's employee in the operation of the truck. Vendaway filed a third party complaint against Chrysler claiming negligence on the part of Chrysler in failing to provide a safe working place for plaintiff. Chrysler answered the third party complaint, asserting that an indemnity clause which was a part of the contractual relationship between Vendaway and Chrysler bars Vendaway's claim and further asserting that Chrysler's payment of workmen's compensation to plaintiff is a complete defense to Vendaway's claim. The issues under consideration are the sufficiency of Vendaway's third party complaint and Chrysler's answer thereto. Chrysler filed affidavits simply establishing the contract which contained the indemnity clause and the workmen's compensation agreement with plaintiff. These were not disputed by Vendaway.

For several years Vendaway has provided food and food services for the Chrysler Newark assembly plant pursuant to contractual arrangement between Chrysler and Vendaway. The contract contained the following paragraph:

'Seller shall defend, indemnify and hold Purchaser harmless from any and all liability for bodily injury, sickness or disease, including death resulting therefrom, of any person or persons, or damage destruction or loss of use of any property, arising out of or resulting from the sale, possession or distribution of any product, foodstuff, or beverage, or from any operation under this agreement, and from any act or omission, negligent or otherwise, of Seller or any of its subcontractors, employees, agents, or servants or of any other persons, excepting only employees of Purchaser whose activities Seller does not have the right to control.'

Chrysler contends that this is a complete defense to Vendaway's third party complaint. Vendaway contends that the hold harmless provision is to protect against claims for illness from improper food and does not extend to a claim based upon negligent operation of a delivery truck. Vendaway further claims that the exception at the end of the provision excludes a claim by Chrysler employees from the hold harmless protection.

An agreement indemnifying one against the results of ones own negligence is valid under Delaware law. Marshall v. M. D & V Rwy. Co., 1 W.W.Harr. 170, 112 A. 526 (1921); Smoke v. Turner Construction Co., 54 F.Supp. 369 (Del.1944). ¹ The intention to indemnify must clearly appear from a fair construction of the instrument, but precise words need not be used, so long as the intention to create such indemnity is clear. ibid.

However, a contract to indemnify one against the consequences of one's own negligence is not favored in law. Pan American World Airways v. United Aircraft Corp., 3 Storey 7, 163 A.2d 582, 587 (1960); Marshall v. M. D & V Rwy. Co., supra. Such a contract is strictly construed, and where possible will be construed not to confer immunity from liability. ibid. Recently, the Delaware Supreme Court has held that a contract provision must be 'crystal clear and unequivocal' if a contractor is to be held liable to indemnify a contractee for contractor's negligence. State of Delaware v. Amiesite Corp., 297 A.2d 41, (Supr.1972).

The general rule is that 'a contract of indemnity will not be construed to indemnify a person against his own negligence where such intention is not expressed in clear and unequivocal terms.' 175 A.L.R. 30.

The principle described above has been applied to preclude contractual indemnity under various contract provisions. In Pan American, supra, the indemnity contract provision which covered 'all duties or liabilities . . . arising out of the use of the goods' was held not to cover negligent failure to use reasonable care in the design, selection of material, inspection of testing of a mechanism and failure to warn of the existence of defects therein. In Altemus v. Pennsylvania Railroad Company, 210 F.Supp. 834 (Del.1962) a provision indemnifying railroad from claims by reason of "such accidents, injuries, damages, or hurt that may happen or occur upon or about (the operation involving the delivery of fuel oil)" was held not to protect against damages involving a railroad employee who was injured while assisting in the delivery of the oil. In Pennsylvania Railroad Company v. Gulf Oil Corp., 223 A.2d 79 (Del.Super.1966), which involved the same contract provision which was considered in Altemus, supra, this Court held that the District Court had properly construed the provision under Delaware law. In Delaware Power &amp Light Co. v. Mayor & Council, 200 A.2d 840 (Super.1964), this Court held that an indemnity provision by which the power company agreed to indemnify the city from claims 'arising from the delay, negligence or unsuccessfulness on its (Power Company's) part or its servants, . . . or . . . arising from any injury or injuries which may happen to any person or persons, from or on account of the laying and using of said conduits, pipes, wires, etc.' did not protect the City against liability for negligent actions (placing heavy concrete slab) by City.

In Hollingsworth v. Chrysler Corp., 208 A.2d 61 (Super.1965) this Court held that an indemnity provision protecting Chrysler against injuries resulting from 'any action or operation under the contract or in connection with the work' did not protect Chrysler against a claim based upon negligence of Chrysler by an employee of the sub-contractor.

The indemnity language in this case is broad. But it does not address itself specifically to claims involving acts or omissions or negligence of Chrysler. ² Moreover, the language in this case assures defense as well as indemnity in many situations and, hence, the provision would not be rendered meaningless or useless if it is held inapplicable to claims based upon Chrysler's negligence. It is not 'crystal clear and unequivocal' from the indemnity provision that Chrysler is to be indemnified for its own negligence and, therefore, Chrysler is not afforded such protection. Cf. State of Delaware v. Interstate Amiesite Corp., supra.

In view of the conclusion reached above, it is not necessary to review the other contentions made by Vendaway concerning limitations inherent in the language of the indemnity provision.

The indemnity clause does not bar Vendaway from asserting its third party complaint.

The next issue is whether Chrysler breached a duty which it owed to Vendaway as a result of which Chrysler is liable to Vendaway for the damages which plaintiff might recover against Vendaway.

Plaintiff was working as an employee of Chrysler at the time of the accident. The relationship between plaintiff and Chrysler is governed by the Workmen's Compensation Law, 19 Del.C. Sec. 2304. By virtue of that statute, the employer is not only not liable to the employee for negligence, but the employer is not liable for joint and concurrent negligence with another party. Miller v. Ellis, 122 A.2d 314 (Super.1956). Consequently the employer will not be held liable for contribution or restitution to a third party for damages awarded to an employee against the third party. Diamond State Tel. Co. v. University of Delaware, 269 A.2d 52 (Supr.1970). This principle applies even though the negligence of the employer when compared to that of the third party is evaluated as 'primary' vis-a-vis 'secondary', or as 'active' vis-a-vis 'passive'. ibid. In Diamond, supra, p. 56, the Delaware Supreme Court held that by reason of the Workmen's Compensation Law, there could be no recovery against an employer 'on any common law theory', and, this precluded contribution or restitution to a third party. Accordingly, if Chrysler is to...