Speers v. H.P. Hood, Inc.

• Court: Appeals Court of Massachusetts
• Citation: 22 Mass.App.Ct. 598,495 N.E.2d 880
• Parties: Robert J. SPEERS v. H.P. HOOD, INC.; Bloom, South & Gurney, Inc., third-party defendant.
• Decision Date: 03 October 1986

Page 880

495 N.E.2d 880 22 Mass.App.Ct. 598 Robert J. SPEERS
v.
H.P. HOOD, INC.; Bloom, South & Gurney, Inc., third-party defendant. Appeals Court of Massachusetts,
Suffolk. Argued April 16, 1986.
Decided July 30, 1986.
Further Appellate Review Denied Oct. 3, 1986.

Joseph J. Walsh, Boston, for Bloom, South & Gurney, Inc.

Andre A. Sansoucy, Boston, for H.P. Hood, Inc.

Before PERRETTA, KAPLAN and WARNER, JJ.

KAPLAN, Justice.

H.P. Hood, Inc. (Hood), operates a plant in Newport, Maine, ¹ for the manufacture of cottage cheese. It had a need for "regrouting" a split brick floor in a processing area on the second level of the building. This would consist largely of filling in or replacing mortar which tended to deteriorate by reason of contact with milk and other fluids. The company of Bloom, South & Gurney, Inc. (BSG), had regularly done similar work for Hood in its plants in New England. BSG accepted a purchase order covering the regrouting job (actually it included other work at the plant as well). Paragraphs 6 and [22 Mass.App.Ct. 599] 7 of the document set forth the indemnity provision and a related insurance provision that are the subject of the dispute here.

A BSG crew arrived at the plant on the morning of May 1, 1980, and Robert Speers, a tile helper employed by BSG, commenced regrouting a floor area adjacent to a holding tank No. 2. This contained a 40% solution of sodium hydroxide which, evidently in further diluted form, was used to clean processing equipment. After working a while, Speers complained of pain on the surfaces of his legs and arms. It turned out that he was suffering from burns that might be traceable to some quantity of the caustic (or its residue) that could have found its way from the tank onto the floor.

Page 881

For his injuries, Speers, plaintiff, brought the present action in Superior Court against Hood, defendant, charging it with negligence in failing to provide safe conditions of work (and so forth). Hood, as third-party plaintiff, impleaded BSG, third-party defendant, asserting under the indemnity provision that BSG would be liable to it for any damages that might be recovered by Speers in the main action. ² After the pleadings were completed in usual course, there was a certain amount of pretrial activity--requests for admissions, interrogatories, and depositions upon oral examination designed on BSG's part to explore the possible issues of Hood's concurrent or sole negligence. Finally Hood moved for summary judgment against BSG. This was based, not upon any claim or showing that Hood was free of negligence, but rather upon the proposition that Hood would be entitled to indemnification under the contract provision even if Speers should ultimately recover a judgment against Hood with a finding that Hood was solely negligent. A judge of the Superior Court agreed with Hood's contention, and BSG appeals to this court from a judgment declaring in Hood's favor. ³ We affirm, following, as will appear, the [22 Mass.App.Ct. 600] lines of reasoning of Shea v. Bay State Gas Co., 383 Mass. 218, 418 N.E.2d 597 (1981); see also Whittle v. Pagani Bros. Constr. Co., 383 Mass. 796, 422 N.E.2d 779 (1981); Aho v. Blanchette, 18 Mass.App.Ct. 149, 463 N.E.2d 1203 (1984).

The contract paragraphs in question are reproduced in the margin. ⁴ As indicated in Shea, 383 Mass. at 222, 418 N.E.2d 597, an indemnity provision is no longer to be read with any bias in favor of the indemnitor and against the indemnitee; ⁵ it is to be interpreted like any ordinary contract, with attention to language, background, and...