Stovall v. Universal Construction Company, No. 1021938 (Ala. 4/9/2004)

• Decision Date: 09 April 2004
• Docket Number: No. 1021953.,No. 1021938.,1021938.,1021953.
• Parties: India Stovall, individually and on behalf of her minor children, David G. Stovall and Joel Stovall v. Universal Construction Company, Inc., d/b/a Turner-Universal Universal Construction Company, Inc., d/b/a Turner-Universal v. Penwal Industries, Inc.
• Court: Alabama Supreme Court

Page 1

India Stovall, individually and on behalf of her minor children, David G. Stovall and Joel Stovall v. Universal Construction Company, Inc., d/b/a Turner-Universal

Universal Construction Company, Inc., d/b/a Turner-Universal v. Penwal Industries, Inc.

No. 1021938.

No. 1021953.

Supreme Court of Alabama.

Decided April 9, 2004.

Appeals from Madison Circuit Court, CV-01-1119.

HOUSTON, Justice.

The plaintiff, India Stovall, individually and on behalf of her minor children, David G. Stovall and Joel Stovall (hereinafter collectively referred to as "Stovall"), appeals from a summary judgment in favor of the defendant, Universal Construction Company, Inc., d/b/a Turner-Universal ("Turner"). Turner appeals from the dismissal of its third-party complaint against Penwal Industries, Inc. ("Penwal"). These appeals were consolidated. We affirm the judgment in Stovall's appeal (case number 1021938), and we reverse and remand in Turner's appeal (case number 1021953).

Facts and Procedural History

In anticipation of the 30th anniversary of man's first landing on the moon, the U.S. Space and Rocket Center in Huntsville sought to construct and erect a replica of the Saturn V rocket, the rocket that carried the Apollo 11 astronauts ("the rocket"). The Alabama Space Leasing Corporation entered into an agreement with Turner, a Delaware corporation, pursuant to which Turner was to design and build the rocket replica. Turner subcontracted with Penwal, a California corporation, for the assembly and erection of the rocket. The subcontract provided that Penwal was to "perform and furnish all the work, labor, services, materials, plant, equipment, tools, scaffolds, appliances, and other things necessary for ASSEMBLY AND ERECTION OF SATURN V ROCKET." (Capitalization in original.)

The subcontract defined the rocket as including, among other components:

"J. Rust inhibitive high quality paint on all exterior components on areas which may be exposed to rust.

"K. Exterior skin to be pre-painted with high quality paint with approved primer including all prominent graphics to simulate Saturn V Rocket at U.S. Space and Rocket Center."

The subcontract also stated that Turner, as the general contractor, would "furnish temporary lighting for night shifts sufficient to allow assembly." Finally, the subcontract listed several components and jobs for which Penwal was not responsible, including "[t]emporary lighting or electrical."

Article XXIII of the subcontract is entitled "Liability for Damage and Personal Injury"; it reads:

"The Subcontractor [Penwal] hereby assumes entire responsibility and liability for any and all damage of any kind or nature whatever (including death resulting therefrom) to all persons, whether employees of any tier of [Penwal] or otherwise, and to all property caused by, resulting from, rising out of or occurring in connection with the execution of the Work, or in preparation for the Work, or any extension, modification, or amendment to the Work by change order or otherwise. Except to the extent if any, expressly prohibited by statute and excluding from this indemnity such acts or omissions, if any, of the party indemnified for which it is not legally entitled to be indemnified by [Penwal] under applicable law, should any claims for such damage or injury (including death resulting therefrom) be made or asserted, whether or not such claims are based upon [Turner's] or the Owner's [U.S. Space and Rocket Center's] alleged active or passive negligence or participation in the wrong or upon any alleged breach of any statutory duty or obligation on the part of [Turner] or the [U.S. Space and Rocket Center], [Penwal] agrees to indemnify and save harmless [Turner] and the [U.S. Space and Rocket Center], their officers, agents, servants and employees from and against any and all such claims and further from and against any and all loss, cost, expense, liability, damage, penalties, fines or injury, including legal fees and disbursements, that [Turner] and the [U.S. Space and Rocket Center], their officers, agents, servants or employees may directly or indirectly sustain, suffer or incur as a result thereof and [Penwal] agrees to and does hereby assume on behalf of [Turner] and the [U.S. Space and Rocket Center], their officers, agents, servants and employees, the defense of any action at law or in equity which may be brought against [Turner] and/or the [U.S. Space and Rocket Center], their officers, agents, servants or employees, upon or by reason of such claims and to pay on behalf of [Turner] and the [U.S. Space and Rocket Center], their officers, agents, servants and employees, upon demand, the amount of any judgment that may be entered against [Turner] and/or the [U.S. Space and Rocket Center], their officers, agents, servants or employees in any such action."

In addition, the subcontract required Penwal to obtain liability insurance. Penwal complied, obtaining insurance with Reliance Insurance Company ("Reliance"), a Pennsylvania corporation licensed to write policies in all 50 states.

In order to fulfill its responsibilities under the subcontract, Penwal contracted with Labor Finders of Decatur, Inc., to supply Penwal with painters. One of the painters Penwal hired through Labor Finders was Elee Stovall, the plaintiff's husband.

On June 19, 1999, Elee's first day on the job, he, his first cousin Maurice Stovall, and Kendrick Fuqua (hereinafter collectively known as "the painters") arrived in the evening to begin work. When they arrived, they were assigned to paint the interior walls of the rocket. The ladder was secured to the rocket by a lashing. The top of the rocket was open, so most of their painting was done by the light of the evening sky. After painting a particular section of the interior, the painters and some other men moved the ladder to another section of the interior. They did not secure the ladder with lashing once they moved it. It was around 10:00 p.m. when they moved the ladder, and the painters then took a break before starting work again.

The painters allege that it was very dark when they arrived back at the rocket after their break. They had two lighting trees at their disposal with which to illuminate the inside of the rocket. Each lighting tree had one working and one dead bulb. The ladder was resting where the painters had left it; it had not been tied off or secured in any way. Maurice Stovall took charge of the lighting trees, shining them on the various places that needed additional painting. Fuqua climbed up one side of the replica, hooked his lanyard onto the safety cable, and began painting. Elee then climbed the untied ladder, attempting to hook his lanyard onto the safety cable. He missed the connection, and as he reached to rehook the lanyard, the ladder shifted and Elee fell from the ladder. The back of his head hit an interior cross beam, and he landed on the concrete floor. Elee subsequently died from the injuries he suffered in the fall.

On June 1, 2001, Stovall sued Turner, alleging negligence/wantonness claims, a products-liability claim, and negligence/wantonness per se.

On October 3, 2001, the Commonwealth of Pennsylvania declared Reliance to be insolvent. On May 9, 2002, Turner brought a third- party complaint against Penwal seeking indemnity and defense in the action filed by Stovall. Penwal filed a motion to dismiss, arguing that because Reliance was insolvent, Penwal had no obligation to indemnify or defend Turner. The trial court dismissed the third-party complaint against Penwal on December 17, 2002.

On July 9, 2003, the trial court entered a summary judgment in favor of Turner on all counts in the action filed by Stovall. Because the summary judgment was a final judgment, see Rule 54(b), Ala. R. Civ. P., it also made appealable the trial court's December 17, 2002, dismissal of Turner's third-party complaint.

Stovall appeals the summary judgment in favor of Turner; Turner appeals the dismissal of its third-party action against Penwal.

I. Stovall v. Turner (case no. 1021938)

Standard of Review

Our review of a trial court's summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., [Ms. 1021758, Dec. 19, 2003] __ So. 2d __, __ (Ala. 2003). In reviewing the trial court's decision, we apply the following principles:

"`The standard of review applicable to a summary judgment is the same as the standard for granting the motion, that is, we must determine whether there was a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and resolve all reasonable doubts against the movant. Wilson v. Brown, 496 So. 2d 756, 758 (Ala. 1986); Harrell v. Reynolds Metals Co., 495 So. 2d 1381 (Ala. 1986). See also Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala. 1990).

"`... Ala. Code 1975, § 12-21-12, mandates that the [nonmovant] meet [its] burden by "substantial evidence." Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala. 1989). Under the substantial evidence test the nonmovant must present "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989).'"

Williams, __ So. 2d at __ (quoting Brewer v. Woodall, 608 So. 2d 370, 372 (Ala. 1992)).

A. Inadequate Lighting

Stovall first argues that the trial court erred in entering a summary judgment because, she argues, genuine issues of material fact exist as to whether Turner negligently failed to provide adequate lighting. We find no merit to this argument.

At issue is the question of Turner's duty. Generally speaking, a contractor owes no duty to the subcontractor whom he has employed. Elder v. E.I. DuPont De Nemours...