State v. Interstate Amiesite Corp.

• Court: Supreme Court of Delaware
• Writing for the Court: WOLCOTT; WOLCOTT
• Citation: State v. Interstate Amiesite Corp., 297 A.2d 41 (Del. 1972)
• Decision Date: 20 September 1972
• Parties: STATE of Delaware, Defendant Below, Appellant, v. INTERSTATE AMIESITE CORPORATION, a corporation of the State of Delaware, Defendant Below, Appellee.

Page 41

297 A.2d 41

STATE of Delaware, Defendant Below, Appellant, v. INTERSTATE AMIESITE CORPORATION, a corporation of the State of Delaware, Defendant Below, Appellee.

Supreme Court of Delaware.

Sept. 20, 1972.

Upon appeal from Superior Court in and for New Castle County.

William F. Taylor, and Ben T. Castle of Young, Conaway, Stargatt & Taylor, Wilmington, for appellant.

Roger P. Sanders, and Wayne N. Elliott, of Prickett, Ward, Burt & Sanders, Wilmington, for appellee.

WOLCOTT, C.J., and CAREY and HERRMANN, JJ., sitting.

WOLCOTT, Chief Justice:

This is an appeal by the State Highway Department (the State) from a post-trial ruling of the Superior Court denying it indemnification from Interstate Amiesite Corporation, a codefendant, (Amiesite) for that percentage of the verdict assessed by the jury against the State.

This was an action brought for personal injuries by several persons, passengers in two automobiles suffering a head-on collision on Delaware Route 24 at a point where road repairs were taking place. The defendants were the driver of one of the cars which struck a pothole in his lane of traffic which propelled it into the lane of travel of the other automobile, and the State and Amiesite, which had entered into a contract for Amiesite to do the required repair to Route 24. By reason of the requirement of 29 Del.C. § 6910, the State had insisted that the contract contain a provision requiring Amiesite contractually to bear all responsibility for damage claims on account of its operations.

The issues of liability against all three defendant, viz., improper driving on the part of the driver, improper construction work by Amiesite, and improper supervision of the work by the State, were submitted to the jury. The jury returned a substantial verdict against all defendants and apportioned the fault among them as follows: the driver, 35%, Amiesite, 45%, and the State, 20%.

The Trial Judge made several post-verdict rulings. Only one of these is before us in this appeal. This ruling is that 'the State Highway Department is not entitled to indemnification (from Amiesite) for its liability as found by the jury for its own failure to adequately supervise.' The State seeks reversal only of this part of the judgment.

The contract between the State and Amiesite contains the following indemnification provision:

'Article 7.13 Responsibility for Damage Claims:

'The contractor shall indemnify and save harmless the Department, its officers and employees, from all suits, actions, or claims of any character brought because of any injuries or damage received or sustained by any person, persons, or property on account of the operations of the said contractor; or on account of or in consequence of any neglect in safeguarding the work; or through use of unacceptable materials in constructing the work; or because of any act or omission, neglect, or misconduct of said contractor; or because of any claims or amounts recovered from any infringements of patent, trademark, or copyright; or from any claims or amounts arising or recovered under the 'Workmen's Compensation Act,' or any other law, ordinance, order, or decree; and so much of the money due the said contractor under and by virtue of his contract as may be considered necessary by the Department for such purpose may be retained for the use of the State; or, in case no money is due, his surety may be held until such suit or suits, action or actions, claim or claims for injuries or damages as aforesaid shall have been settled and suitable evidence to that effect furnished to the Department; except that money due the contractor will not be withheld when the contractor produces satisfactory evidence that he is adequately protected by public liability and property damage insurance.'

We note initially that there is evidence in the record, if accepted by the jury, which supports its verdict as to the fault of both the State and Amiesite. We assume that the jury accepted this evidence and, accordingly, we have before us only the sole legal question as to whether or not a contracting party may by contract insulate itself against its own negligent act. We have no concern with any of the...