Stone Bldg. Co. v. Star Elec. Contractors, Inc.

• Decision Date: 15 December 2000
• Citation: 796 So.2d 1076
• Parties: STONE BUILDING COMPANY v. STAR ELECTRICAL CONTRACTORS, INC.
• Court: Alabama Supreme Court

796 So.2d 1076

STONE BUILDING COMPANY v. STAR ELECTRICAL CONTRACTORS, INC.

1990085.

Supreme Court of Alabama.

December 15, 2000.

Rehearing Denied May 4, 2001.

Stephen D. Heninger and R. Edwin Lamberth of Heninger, Burge, Vargo & Davis, L.L.P., Birmingham; and K. Donald Simms of Lusk, Fraley, McAlister & Simms, P.C., Birmingham, for appellant.

Carol Ann Smith, Brenen G. Ely, and J. Tobias Dykes of Smith & Ely, L.L.P., Birmingham, for appellee.

JOHNSTONE, Justice.

A contractor, Stone Building Company (hereinafter "Stone"), appeals an adverse summary judgment on its cross-claim against a subcontractor, Star Electrical Contractors, Inc. (hereinafter "Star"), for Stone's expenses in defending and settling the main action filed by Dennis Cline and his wife for injuries Dennis suffered on the job site on August 6, 1991. In order to procure an electrical subcontract dated April 20, 1990, Star had promised to obtain liability insurance covering Stone and to "indemnify and save harmless and exonerate" Stone if it were sued for injuries resulting from the job. After Cline suffered his job-site injuries; and after he and his wife sued a number of entities, including Stone and Star, by successive pleadings filed over the course of several years; and after Stone filed cross-claims against Star on the basis of its promises to Stone; and after Stone and Star filed motions for summary judgment against each other on Stone's cross-claims against Star; and after the trial court considered the record that had accumulated over the course of seven years of litigation and considered the arguments of counsel, the trial court entered summary judgment in favor of Star. We affirm in part and reverse and remand in part that summary judgment.

The subcontract between Stone and Star reads, in pertinent part, as follows:

"Section 8. The Subcontractor will maintain such insurance as will protect him and the Contractor from claims under Workmen's Compensation Acts and any other claims from property damage and claims for bodily injury, including death, which may arise from operations under this Contract, whether such operations be by himself or any of his subcontractors or anyone directly or indirectly employed by either of them. Limits of coverage to be as follows:

". . . .

"Indemnity Agreement: The Subcontractor covenants to indemnify and save harmless and exonerate the Contractor and the Owner of and from all liability, claims and demands for bodily injury and property damage arising out of the work undertaken by the Subcontractor, its employees, agents or its subcontractors, and arising out of any other operation no matter by whom performed for and on behalf of the Subcontractor, whether or not due in whole or in part to conditions, acts or omissions done or permitted by the Contractor or Owner."

(C.R. 469, emphasis added.)

While installing drywall on this job in the employment of another subcontractor, Cline's metal tape-measure touched a live, uninsulated electrical wire, and the consequent shock injured him and caused him to fall from his ladder and to suffer injuries from his fall as well. Through an original complaint, dated July 2, 1992, and successive amendments, Cline and his wife sued a number of defendants, including Stone and Star.¹ Adding Stone as a defendant in an amendment to the complaint dated September 9, 1992, the Clines alleged:

"On said date and occasion, the Defendant, STONE, negligently and/or wantonly planned, supervised, and/or executed remodelling, renovation, and/or repairs of the site of the occurrence made the basis of this lawsuit, in that STONE negligently and/or wantonly caused or allowed charge[d] and exposed electrical wires to be present and unprotected, and failed to warn and/or protect the Plaintiff, DENNIS R. CLINE, or others, of and from such dangerous condition. STONE knew or should have known that the Plaintiff, DENNIS R. CLINE, and others, would be in and about the immediate area of the charged and exposed wires, and owed a duty to the Plaintiff, DENNIS R. CLINE, to warn him of such dangerous condition. As a proximate cause of such negligent and/or wanton conduct and breach of duty, the Plaintiff, DENNIS R. CLINE, was caused to suffer the injuries and damages described hereinafter."

(C.R. 15, emphasis added.) Adding Star as a defendant on March 2, 1995, the Clines amended three paragraphs of their original complaint. Two of the amended paragraphs are pertinent:

"17. The plaintiffs aver the defendant, Star Electrical Contractors, Inc., (Star) was the subcontractor involved in the construction of the site of the occurrence made the basis of this lawsuit. During or after the aforesaid construction, Star negligently and/or wantonly left, allowed or caused a charged, naked and uninsulated electrical wire formerly in place on the fifth floor to hang into the ceiling space of the fourth floor with which Dennis R. Cline made contact through a metal tape measure on August 6, 1991.

"20. The plaintiff, Dennis R. Cline, alleges that his injuries and damages were caused as a proximate consequence of the combined and concurring negligence and/ or wanton conduct of the defendant, Stone ..., a general contractor; 4 Star Electric Company, Inc., a subcontractor; Star ..., a subcontractor; Mutual Assurance, Inc., a corporation; Capital Properties, Inc., a corporation; Garikes, Wilson, Atkinson, Inc., an architectural corporation; and defendants remaining who are fictitiously described in the last amendment to the complaint."

(C.R. 107-08, emphasis added.) During the course of the litigation, the Clines produced sufficient evidence supporting these allegations against Star to withstand three motions for summary judgment before trial and two motions for judgment as a matter of law during trial, before a jury eventually found in favor of Star on the Clines' claims.

In the process of defending the suit by the Clines, on September 17, 1997, Stone filed its cross-claim against Star. There Stone alleged, in pertinent part:

"4. While Defendant/Cross-Claim Plaintiff, Stone, denies that it is liable to Plaintiffs under any theory alleged in the Plaintiffs' Complaint, nevertheless, Stone says that if it is determined that it is liable to Plaintiffs, then Stone is entitled to indemnity from Star ... for any liability.

"5. On or about April 20, 1990, Star... entered into an agreement whereby Star ..., as the Subcontractor, agreed to furnish all labor, materials and fully perform and in every respect complete the electrical work for the project of Mutual Assurance, located at Metroplex IV Building, Birmingham, Alabama 35209. A copy of that agreement is attached as Exhibit 1 to plaintiffs' Narrative Summary in Opposition to the Motion for Summary Judgment of Defendant, Star.... A copy of which is attached hereto, made a part hereof, and incorporated herein by reference as Exhibit A. (Emphasis in original.)

"6. Section 8 of the contract agreement between Stone and Star ... provides as follows:

"Indemnity Agreement: The subcontractor, [Star] covenants to indemnify and save harmless and exonerate the Contractor [Stone] and the Owner of and from all liability, claims and demands for bodily injury and property damage arising out of the work undertaken by the Subcontractor, its employees, agents or its subcontractors (emphasis added), and arising out of any other operation no matter by whom performed for and on behalf of the Subcontractor, whether or not due in whole or in part to conditions, acts or omissions done or permitted by the Contractor or Owner. (Emphasis in original.)

"7. Plaintiff alleges that pursuant to the contract between Stone and Star, Star was responsible for the demolition and removal of the existing electrical conduit, wiring, boxes, etc. which serviced the fifth floor. (See Plaintiffs' Exhibits 2 and 2A attached to Plaintiff Narrative Summary in Opposition to the Motion for Summary Judgment of the Defendant, Star....).

". . . .

"9. Plaintiff alleges that Star breached its contractual duty to Stone thereby creating a dangerous condition as a proximate result of which the plaintiff suffered injuries for which he claims damages in this action.

"10. A justiciable controversy exists regarding the existence of any potential liability on Stone's part to Plaintiffs arising from the August, 1991 accident, and regarding defendant Star['s] ... duty to indemnify and hold harmless Stone from any liability arising out of said accident.

"WHEREFORE, premises considered, Stone requests that the Court enter an order declaring that Stone has no liability to Plaintiffs arising from the August 1991 accident. In addition, or in the alternative, Stone requests that the Court enter an order declaring that defendant, Star ..., has a duty to indemnify it and hold it harmless against any and all loss, cost, expense, claim, fines, penalties, and liability (including but not limited to attorneys' fees) arising from the August 1991 accident, referenced in Plaintiffs' complaint. Stone further demands judgment against defendant, Star..., in the amount to be determined by a jury, of all loss, cost, expense, claim, fines, penalties, and liability (including but not limited to attorneys' fees) to or incurred by Stone ... as a result of the August 1991 accident up through the date of judgment. Stone ... also prays for such other, further, or additional relief which the Court deems proper in the circumstances."

(C.R.511-13.) Stone later amended this cross-claim on June 30, 1998, to include the following claims:

"6. The contract, in section 8, which pertains to the indemnity agreement made the basis of Stone's original cross-claim, further provides as follows:

"Certificates of Insurance: The subcontractor (Star) will submit to the Contractor (Stone) five (5) copies of certificates of insurance certifying that the insurance policies carried by him were in force....

"7. On or about February 6, 1991, Star complied with its contractual

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