Redford v. City of Seattle

• Decision Date: 08 October 1979
• Docket Number: No. 6791-I,6791-I
• Court: Washington Court of Appeals
• Parties: Ronald G. REDFORD and Patricia Redford, husband and wife; Stephanie Redford Paxton; Lois Redford; and Patricia Redford, as guardian ad litem for Charles V. Redford and Timothy West Redford, Plaintiffs, v. CITY OF SEATTLE, a Municipal Corporation; Seattle City Light; Jorgensen Steel Co., a corporation; Flohr & Company Metal Fabricators, Inc., a corporation, Defendants. JORGENSEN STEEL COMPANY, Respondent, v. Wayne and Jane Doe JACOBSON, d/b/a Jacobson & Sons, Appellants.

Page 484

24 Wn.App. 484

602 P.2d 717

Ronald G. REDFORD and Patricia Redford, husband and wife;

Stephanie Redford Paxton; Lois Redford; and Patricia

Redford, as guardian ad litem for Charles V. Redford and Timothy West Redford, Plaintiffs, v. CITY OF SEATTLE, a Municipal Corporation; Seattle City

Light; Jorgensen Steel Co., a corporation; Flohr &

Company Metal Fabricators, Inc., a

corporation, Defendants.

JORGENSEN STEEL COMPANY, Respondent, v. Wayne and Jane Doe JACOBSON, d/b/a Jacobson & Sons, Appellants.

No. 6791-I.

Court of Appeals of Washington, Division 1.

Oct. 8, 1979.

Reconsideration Denied Dec. 21, 1979.

Reed, McClure, Moceri & Thonn, P.S., William Robert Hickman, Hugh A. McClure, John W. Rankin, Jr., Seattle, for appellants.

Stafford, Frey & Mertel, A. Richard Dykstra, Charles W. Mertel, Seattle, for respondents.

ANDERSEN, Judge.

FACTS OF CASE

An employer seeks review of an order of partial summary judgment requiring him to indemnify a third party for sums paid by the third party on a personal injury claim to a workman of the employer.

Jacobson and Sons, a painting contractor, is the employer. Jorgensen Steel Company is the third party. Jacobson contracted to do painting work for Jorgensen on Jorgensen's premises. Ronald G. Redford, an employee of Jacobson, sustained serious injuries while painting Jorgensen's building.

Redford sued Jorgensen for damages. Jorgensen thereupon filed a third-party complaint against Jacobson seeking indemnity in accordance with a written indemnity agreement between Jorgensen and Jacobson. That agreement is set forth as Appendix A.

The parties stipulated to the following facts. The third party was negligent and its negligence was a proximate cause of the employee's injury. The employer was also negligent and its negligence was likewise a proximate cause of the employee's injury. The indemnity agreement between the third party and the employer covered the job on which the employee was injured. The personal injury claim of the employee against the third party was settled for The third party moved for summary judgment declaring that the language of the indemnity agreement gave it a right to indemnity from the employer for damages paid by the third party to the injured employee.

                $690,840.63.  1 The third party's contribution to that settlement was $490,840.63.  At the time the employee was injured, he was working within the scope of his employment
                

At the conclusion of the hearing on the third party's motion for summary judgment, the trial court entered a partial summary judgment to the following effect: (1) the agreement between the third party (Jorgensen) and the employer (Jacobson) is a valid, enforceable indemnity agreement which is applicable to the situation in which indemnitor and indemnitee are causally negligent; (2) the agreement means that the loss suffered by the third party (Jorgensen), in the form of its settlement of the employee's action against it, must be apportioned between the third party and the employer, so that the employer indemnifies the third party for all of the third party's $490,840.63 loss except that portion of it which was attributable to the causal negligence of the third party; and (3) a trial must be held for the jury to determine which portion of the causal negligence is the third party's and is to be deducted from the third party's settlement contribution.

No issue is raised as to the reasonableness of the settlement.

We have accepted review of the order of partial summary judgment.

Two basic issues are presented.

ISSUES

ISSUE ONE. In an action by an employee, can a negligent third party obtain indemnity from an employer under a written indemnification agreement when the employer's ISSUE TWO. Is an indemnity agreement invalid when the negligence of the indemnitee is excepted therefrom?

negligence has caused or contributed to the injury sustained by the employee?

DECISION

ISSUE ONE.

CONCLUSION. The third party may recover in indemnity over against an employer where, as here, the employer voluntarily assumed an independent obligation to the third party by entering into a written indemnity agreement and where the third party's action was based solely on that agreement and not on the employer's conduct toward its injured employee.

In Seattle-First Nat'l Bank v. Shoreline Concrete Co., 91 Wash.2d 230, 588 P.2d 1308 (1978), the State Supreme Court recently addressed some aspects of the question of whether a third party in an action by an employee can obtain contribution or indemnity from the employer where the employer's own negligence has caused or contributed to the injury.

In Shoreline, it was held that an employer who pays its premiums under the state industrial insurance act, RCW Title 51, is thereby immunized from either direct or third-party tort actions arising from the employer's negligent conduct toward its employee who is injured.

Shoreline went on to hold:

A different situation is present, however, where an employer voluntarily assumes an independent duty or obligation to the third party. See Olch v. Pacific Press & Shear Co., (19 Wash.App. 89, 573 P.2d 1355 (1978)) Supra at 92-93, 573 P.2d 1355; Montoya v. Greenway Aluminum Co., (10 Wash.App. 630, 519 P.2d 22 (1974)) Supra at 631-32, 519 P.2d 22; Tucci & Sons, Inc. v. Carl T. Madsen, Inc., 1 Wash.App. 1035, 1040-41, 467 P.2d 386 (1970). See also 2A A. Larson, The Law of Workmen's Compensation §§ 76.10, 76.30 Et seq. (1976). Nonetheless, for these actions to be judicially cognizable, the third party's theory of Employer liability cannot stem from conduct "immunized" by the Act, E. g., that which necessarily involves the employer's conduct vis-a-vis the employee. Any such action must be based solely upon an independent obligation existing between the employer and the third-party claimant.

Seattle-First Nat'l Bank v. Shoreline Concrete Co., supra at 242-43, 588 P.2d at 1316.

Although Shoreline involved indemnity claims of third parties against the employer of the employee whose death gave rise to those claims, the claims all sounded in tort. Shoreline did not involve indemnity claims based on contract, as here. In Shoreline, the indemnity claims were determined from the record before the court to be based on the fault of the employer toward its own employee and on that basis were held not to be judicially cognizable. Shoreline did not hold, as the employer here contends, that our courts are without jurisdiction over contractual theories of liability by a third party against an employer.

In the present case both the employer and the third party were negligent and their negligent acts or omissions were proximate causes of the employee's injury. The third party's negligence was thus a joint or concurrent cause of the injury. Because the harm caused was indivisible, the third party was responsible for the entire harm caused and the injured employee had the right to look to it alone for full recovery. Seattle-First Nat'l Bank v. Shoreline Concrete Co., supra at 234-36, 588 P.2d 1308. The fact that the employer's negligence contributed to cause the injury does not thereby render the indemnity agreement unenforceable against the employer. Cope v. J. K. Campbell & Assocs., Ltd., 71 Wash.2d 453, 429 P.2d 124 (1967).

Most jurisdictions, including our own, permit a third party to recover over against the employer whenever it can be said that the employer has an independent obligation to indemnify the third party. 2A A. Larson, The Law of Workmen's Compensation § 76.30 (1976); Seattle-First Nat'l Bank v. Shoreline Concrete Co., supra at 242-44, 588 P.2d 1308; Tucci & Sons, Inc. v. Carl T. Madsen, Inc., 1 Wash.App. 1035, 467 P.2d 386 (1970). See Olch v. Pacific Press &amp Shear Co., 19 Wash.App. 89, 573 P.2d 1355 (1978) and Montoya v. Greenway Aluminum Co., 10 Wash.App. 630, 519 P.2d 22 (1974).

A written indemnity agreement, as is involved here, does create an independent obligation on the employer to indemnify the third party. As Larson explains:

§ 76.40 What acts create independent obligation to indemnify

§ 76.41 Express contract of indemnity

The clearest exception to the exclusive-liability clause is the third party's right to enforce an express contract in which the employer agrees to indemnify the third party for the very kind of loss that the third party has been made to pay to the employee. A familiar example is the situation in which an employee is injured because of the condition of the premises, and recovers from the landlord who leased the premises to the employer; if the landlord in the lease has exacted a covenant from the employer to hold the landlord harmless in the event of such claims, the enforcement of this covenant does not violate the exclusive-remedy provision of the compensation act. Another increasingly familiar example is the hold-harmless agreement assumed by a contractor doing work for a city or other owner, or by a subcontractor for the benefit of the general contractor. Indeed, with everyone trying to protect himself by such agreements, one may even encounter them in series, along which the liability travels until it settles upon the ultimate indemnitor.

(Footnotes omitted.) 2A A. Larson, The Law of Workmen's Compensation 14-324 14-327 (1976). Accord, Tucci & Sons, Inc. v. Carl T. Madsen, Inc. supra. This principle has also been recognized by our decisions in Olch v. Pacific Press & Shear Co., supra and Montoya v. Greenway Aluminum Co., supra.

Here, the employer by entering into the written indemnity agreement assumed an independent obligation to the third party. By his contract, the employer agreed to indemnify the third party for the kind of loss that the third party paid to the employee. The present indemnity action by the third party against the employer is based solely on that independent obligation and will therefore lie.

ISSUE TWO.

CONCLUSION. Reviewing the indemnity agreement signed by the parties in this case in...