Scruggs v. Jefferson County, 2182-II
| Decision Date | 25 July 1977 |
| Docket Number | No. 2182-II,2182-II |
| Citation | 18 Wn.App. 240,567 P.2d 257 |
| Parties | Eugene SCRUGGS, Jr., Guardian for Keith Scruggs, an incompetent, Plaintiff, v. JEFFERSON COUNTY, a Municipal Corporation, Appellant, Puget Sound Power and Light Company, a Washington Corporation, Respondent. |
| Court | Washington Court of Appeals |
William P. Fite, Skeel, McKelvy, Henke, Evenson & Betts, Seattle, for appellant.
Robert K. Waitt, Murray, Dunham & Waitt, Seattle, for respondent.
Jefferson County appeals from the dismissal of its cross-claim against Puget Sound Power and Light Company and denial of its motion for judgment notwithstanding the court's memorandum opinion. The appeal essentially involves application of a contract clause to determine whether the County is entitled to indemnification from Puget Power for the sum the County paid to settle a personal injury claim. We affirm.
On July 5, 1971, Keith Scruggs was seriously and permanently injured when a car in which he was riding failed to negotiate a curve on Old Shine Road in Jefferson County. The car struck a utility pole owned and maintained by Puget Power under a franchise agreement with the County. Scruggs sued the County and Puget Power, alleging negligence. The County paid $150,000, which all parties agree was reasonable under the circumstances, in settlement of the claim.
The County cross-claimed against Puget Power, seeking to invoke the indemnity provisions of a franchise agreement which provides that Puget Power is granted:
the right, privilege, authority and franchise . . . to construct, erect, alter, improve, renew, repair, operate and maintain an electric transmission and distribution line, consisting of a single line of poles, . . . and to transmit and distribute thereover electric current . . . along and across the public roads and highways, . . .
The agreement also provides:
Said grantee agrees to hold the County of Jefferson harmless and free of all costs and expense by reason of accidents experienced or caused by the construction or operation of said transmission lines. And said grantee agrees to hold the said County of Jefferson harmless and free of all costs and expense or damages of any kind whatsoever, experienced or caused by reason of the exercise by grantee of any of the rights herein granted.
(Italics ours.)
The trial court found that Keith Scruggs' loss was caused solely by the negligence of the car's driver and by the County's failure to pose a speed sign at the curve, and that Puget Power's pole contributed in no way to the accident. These findings are supported by the record and are unchallenged on appeal, and we must accept them as established facts. Hampel v. Ihrig, 75 Wash.2d 253, 450 P.2d 179 (1969). The County, in fact, accepts that Puget Power was not negligent in the placement or maintenance of the utility pole. The pole was located more than 16 feet from the center line of the road as required by the franchise. Moreover, it was placed in a location designated by the State Department of Highways.
The uncontradicted testimony of the County's expert witness, Dr. Peter Fisher, was that Keith Scruggs' injuries were caused by the car's sudden deceleration as it struck the pole. Although the trial court recognized this causative factor in its memorandum opinion, it refused to enter the County's proposed finding of fact to that effect. The County assigns error to this refusal, as well as to certain of the court's findings that should, it is argued, have been categorized as conclusions of law. The County's argument is that its proposed finding that the injuries were caused by the presence of the pole, together with the fact the pole was placed and maintained by Puget Power on condition the power company would hold the County harmless under the indemnity clause, means that a reasonable settlement of Scruggs'...
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