Speers v. H.P. Hood, Inc.

• Decision Date: 03 October 1986
• 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.
• Court: Appeals Court of Massachusetts

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 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.

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 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 purpose.

Present paragraph 6 is compact and brief, ⁶ but its meaning seems reasonably clear. BSG is to save Hood harmless from all claims, damages, actions, liability, or loss arising from acts, or omissions to act, of BSG or its agents or employees in the fulfillment of the contract, be the acts or omissions negligent or nonnegligent. Whatever the outer bounds described by this language, we think they comprise Speers' acts on the brick floor and his claim against Hood for his injuries, such as it might be, arising from that performance. So far the indemnity reaches; the text does not suggest that it stops short of a case where the indemnitee is itself concurrently or solely negligent. ⁷ Shea teaches that, where the sense is reasonably clear, an indemnity provision may be read to cover situations of indemnitee's negligence although there is no explicit statement to that effect: Shea was an instance of such interpretation where it was assumed that the indemnitee's negligence was concurrent with that of the indemnitor and a third party. 383 Mass. at 219-220, 418 N.E.2d 597.

Here we have a common situation in which Speers would ordinarily have worker's compensation through his relation to his own employer, BSG. Hood, however, is exposed to possible common law liability at the suit of Speers. Quite naturally, Hood wants to shed this possible responsibility toward a worker not part of its force, and proceeds to shift it to the worker's own employer, the independent contractor temporarily on the premises to do a particular job. See Whittle v. Pagani Bros. Constr. Co., 383 Mass. at 797, 799-800, 422 N.E.2d 779; American Agricultural Chem. Co. v. Tampa Armature Works, Inc., 315 F.2d 856, 858 (5th Cir.1963); Stern v. Larocca, 49 N.J. Super. 496, 507, 140 A.2d 403 (1958). It is expected that BSG will obtain insurance to meet this contract-assumed risk. Indeed, this is dealt with in paragraph 7, which describes the types of insurance that BSG is to obtain and their minimum amounts. These contract provisions represent bargains about the allocation of the burdens of...