Trushcheff v. Abell-Howe Co.
| Decision Date | 18 February 1976 |
| Docket Number | ABELL-HOWE,No. 2--56293,2--56293 |
| Citation | 239 N.W.2d 116 |
| Parties | James R. TRUSHCHEFF and Jeanne Trushcheff, Plaintiffs-Appellees, v.COMPANY, Defendant-Appellant, Holman Erection Company, Defendant-Appellee.COMPANY, Cross-Petitioner-Appellant, v. HOLMAN ERECTION COMPANY, a corporation, Defendant to Cross-Petition-Appellee, R. L. Koder Company, Inc., a corporation, Third-Party Defendant-Appellee, Iowa Decks Incorporated and Universal Climate Control, Third-Party Defendants. |
| Court | Iowa Supreme Court |
Swisher & Cohrt, Waterloo, for appellant.
David F. McGuire, Cedar Rapids, for plaintiffs-appellees.
Lynch, Dallas, Smith & Harman, Cedar Rapids, for defendant to cross-petition-appellee, Holman Erection Co.
Ralph W. Gearhart, of Shuttleworth & Ingersoll, Cedar Rapids, for third-party defendant-appellee, R. L. Koder Co., Inc.
Robert C. Nelson and Walter Homsey, Jr., Cedar Rapids, for third-party defendant, Iowa Decks Inc.
Silliman, Gray & Stapleton, Cedar Rapids, for third-party defendant, Universal Climate Control, Inc.
Heard by MOORE, C.J., and RAWLINGS, LeGRAND, REES and McCORMICK, JJ.
Action at law by plaintiffs, James R. Trushcheff (Trushcheff) and Jeanne Trushcheff, husband and wife, against Abell-Howe Company (Abell-Howe) and Holman Erection Company (Holman) for recovery of damages resulting from Trushcheff's fall through a roof opening in a building then under construction. Trial jury returned verdicts for plaintiffs against defendant Abell-Howe and it appeals from judgments accordingly entered. We affirm.
A prefactory identification of the multiple parties included in this litigation, other than plaintiffs, is deemed appropriate. Abell-Howe is an Illinois corporation engaged in the construction of commercial or industrial structures in Iowa. Holman is a Minnesota corporation which erects the steel superstructure for such buildings. R. L. Koder Company, Inc. (Koder) is an Iowa roofing business corporation and at all times material hereto was Trushcheff's employer. Iowa Decks Incorporated (Iowa Decks) is a local corporate entity specializing in the erection of metal decking for roof construction. Universal Climate Control (Universal), an Iowa corporation, does business as a mechanical contractor devoted to installation of air conditioning devices and other duct work.
On the other hand, only the plaintiffs, Abell-Howe, Holman and Koder are parties to this appeal.
On or about February 15, 1968, defendant Abell-Howe, as general contractor, was engaged to construct a portional part of the Area Ten Community College (Linn Hall) in Cedar Rapids. Thereafter, Abell-Howe subcontracted much of the work to others. Erection of all reinforcing and structural steel, including the metal roofing deck, was subcontracted to Holman. Construction of the built-up roof was subcontracted to Koder. By late August, the steel erection work had so progressed that metal decking for the roof on Section H () could be laid upon the I-beams, joists and framing angles previously installed.
Pursuant to contract Holman began laying the deck but soon ceased when a labor dispute arose. In order to avoid a work stoppage Holman subcontracted the project to Iowa Decks which completed installation during the Labor Day weekend.
Before Iowa Decks left the site area, Universal's foreman marked out five openings on the metal deck of Section H to accommodate certain ventilating installations. It was one of these five openings through which Trushcheff subsequently fell.
Holman was contractually required to lay the deck in accord with plans and specifications prepared by the architect and cut openings where specified. Actual cutting, however, was performed by Holman's subcontractor, Iowa Decks, shortly after its work had been completed. The aforesaid openings were thereafter covered by Abell-Howe with sheets of plywood. These were removed and replaced from time to time as on-going construction dictated.
After several weeks of inclement weather Koder commenced installation of the built-up roof. Specifications required a layer of vapor barrier be applied to the metal deck, then two layers of insulation board and finishing felt be laid in an adhesive laminated fashion, with a final coat of asphalt and gravel. As above noted, Abell-Howe was the general contractor. Furthermore, its superintendent regularly directed, supervised and inspected all work done by the subcontractors, including Koder. By October 24th roofing on the east end of the building had been completed. That night Abell-Howe's superintendent advised Trushcheff the west end (instantly involved) was ready for roof application. The morning of the 25th Trushcheff met with his crew, then proceeded to the roof with Glen Dighton and Richard Lee Jeffrey.
Just prior to the fall Trushcheff and his coworkers laid several sheets of vapor barrier. Trushcheff was standing beside the Rollicoater, a machine used in laying vapor barrier. When work had so progressed that there were two openings in the center of the deck, Jeffrey and Dighton pulled a vapor sheet the full width of the working area over each such opening. As this was being done, Trushcheff left the Rollicoater to help affix the vapor barrier. While he was walking toward the west end Dighton allegedly went to the east and punched out the vapor barrier covered holes. On his return to the Rollicoater, preparatory to laying the next sheet, Trushcheff approached one of the openings, whereupon the deck edge unexpectedly tilted causing him to fall. He landed on the second floor down from the roof, resultantly sustaining multiple fractures and a ruptured intra-abdominal artery.
April 26, 1969, Trushcheff returned to work with Koder as a superintendent, absent any physical labor. About three months later he accepted employment with another roofing firm in like capacity. It was later discovered, however, this required more physical effort than he could perform. Trushcheff therefore terminated such employment and commenced operation of a sole proprietorship roofing business. At trial time he was still successfully pursuing his new venture.
After plaintiffs had commenced their action against Abell-Howe and Holman, Abell-Howe cross-petitioned against Holman and third party defendant Koder for common law (quasi-contract) and contractual indemnity, then against Universal for contribution. In turn Holman cross-petitioned against Koder and Iowa Decks for quasi-contract indemnity. Koder sought like indemnity from Holman.
Upon Koder's motion the quasi-contract indemnity division of Abell-Howe's cross-petition against the former was dismissed before answer had been filed. After joinder of issues Abell-Howe unsuccessfully filed a combined motion for summary judgment, judgment on the pleadings and application for adjudication of law points against Koder and Holman for contractual indemnity based upon a written provision in their respective subcontracts.
At trial Abell-Howe urged reconsideration of its aforesaid motions but these were overruled on a law-of-the-case theory. Additionally, at close of all evidence, Koder and Holman successfully moved for directed verdicts on Abell-Howe's actions against them. Holman was granted a directed verdict as to the action brought against it by plaintiffs and they do not appeal this adverse ruling. Holman's cross-action against Iowa Decks was also removed from the case by a directed verdict, not here questioned.
Upon jury verdicts returned for plaintiffs they were granted judgments against Abell-Howe ($80,200 to Trushcheff and $1000 to his wife). Abell-Howe was denied contribution from Universal.
Ultimately, Abell-Howe moved for judgment n.o.v., or in the alternative, a new trial. These motions were overruled.
In support of a reversal, Abell-Howe assigns six errors involving a series of rulings by trial court. The first three relate to plaintiffs, the remainder pertain to Abell-Howe's claimed right to indemnity from other parties hereto. Reduced to bare essentials, these are the issues here presented:
1. Did trial court err in sustaining plaintiffs' pretrial motion in limine regarding Trushcheffs' present business profits?
2. Did trial court err in submitting a jury instruction regarding Abell-Howe's duty to provide plaintiff a safe place to work?
3. Did trial court err in admitting plaintiffs' evidence as to construction industry practice with regard to the guardian of open roof holes?
4. Did trial court err in refusing to grant quasi-contract (common law) indemnity to Abell-Howe from Koder?
5. Did trial court err in refusing to grant quasi-contract (common law) indemnity to Abell-Howe from Holman?
6. Did trial court err in refusing to grant contractual indemnity to Abell-Howe from Holman and Koder?
I. First considered is the pretrial limine order precluding introductions of evidence concerning profits derived from Trushcheff's new roofing business. By affidavit in support of said motion Trushcheff described his duties and stated profits from his business 'are completely unrelated to any work which (he) personally perform(s).' Rather, such profits depend largely on his skill in estimating time and expenses in 'bidding' for roofing jobs. Finally, the affidavit reveals these figures reflecting his pre and post-injury personal income:
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