Wallace v. Sherwood Const. Co., Inc.
| Decision Date | 31 May 1994 |
| Docket Number | No. 1,No. 80863,80863,1 |
| Citation | 1994 OK CIV APP 82,877 P.2d 632 |
| Parties | 1994 OK CIV APP 82 Greg WALLACE, Plaintiff, v. SHERWOOD CONSTRUCTION COMPANY, INC., Appellee, v. FARMER BROTHERS CONSTRUCTION COMPANY, Appellant. Court of Appeals of Oklahoma, Division |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Appeal from the District Court of Oklahoma County; Thomas C. Smith, Jr., Judge.
AFFIRMED.
Kent Fleming and Paul B. Middleton, Huckaby, Fleming, Frailey, Chaffin & Darrah, Oklahoma City, for appellant.
Tracy L. Pierce and Jeff R. Beeler, King, Roberts & Beeler, Oklahoma City, for appellee.
According to the verdict of a jury and other undisputed facts revealed by the record, Plaintiff Greg Wallace was injured while he was acting as an independent contractor hauling dirt during construction of the John Kilpatrick Turnpike in north Oklahoma City. Sherwood Construction Company, Inc., the general contractor on the project, had subcontracted with Farmer Brothers Company to haul dirt from the site, and Farmer Brothers had hired Wallace, apparently as an independent contractor, to assist in fulfilling that subcontract.
Wallace claimed his injuries resulted from negligence by a Sherwood employee. The jury determined Wallace's injuries were caused equally by his own negligence and that of the Sherwood employee and assessed Wallace's total damages at $42,000. Sherwood paid its half of Wallace's damages and moved for summary judgment on a previously filed third party petition alleging it was entitled to indemnification under its contract with Farmer Brothers.
Farmer Brothers responded, arguing there was no indemnification because Sherwood did not show that any negligence by Farmer Brothers caused Wallace's injuries, and requested summary judgment in its favor. The trial court granted judgment to Sherwood on its third party petition, and Farmer Brothers appeals.
The relevant facts are undisputed. Wallace was on the job site at the time he was injured, performing tasks in furtherance of Farmer Brothers' subcontract with Sherwood. The jury assessed Wallace's negligence at 50% and Sherwood's at 50%. The record does not indicate that the jury was asked to assess any negligence on the part of Farmer Brothers.
The subcontract contained an indemnification clause which provided, in pertinent part:
SECTION 26. INDEMNIFICATION. Subcontractor [Farmer Brothers] agrees to indemnify and hold harmless the owner and/or the contractor [Sherwood] and their agents and employees, from and against any and all demands, claims, suits, causes of action, damages, losses, penalties, and/or expenses, including attorneys fees, arising out of or resulting from subcontractor's performance of the work required by the subcontract, regardless of whether such demand, claim, suit, cause of action, loss, penalty, or expense is incident to or arises out of conditions or omissions permitted or acts performed by an indemnitee unless said demand, claim suit, cause of action, damage, loss, penalty or expense is caused by the sole negligence of the indemnitee.
As one basis for reversal, Farmer Brothers contends Sherwood was required to show that some negligence by Farmer Brothers was a cause of Wallace's injuries. According to Farmer Brothers, the jury found only Wallace and Sherwood responsible for those injuries, and Wallace's claim was not one "arising out of or resulting from subcontractor's performance of the work required by the subcontract."
Farmer Brothers cites no authority to establish that negligence by Farmer Brothers was required. Farmer Brothers asks us to follow the rule adopted in Jones v. Strom Construction Co. Inc., 84 Wash.2d 518, 527 P.2d 1115, 1118 (1974) and require Sherwood to show that some "overt act or omission" by Farmer Brothers in the "performance of the subcontract in some way caused or concurred in causing the loss involved."
Jones involved a indemnification agreement with language quite similar to that involved here. A subcontractor's employee was injured when he fell through a floor which collapsed due to lack of shoring beneath. The employee sued the general contractor whose job it was to make sure the floor was safe. There was no evidence that the employee did anything to contribute to his injuries. As we understand the rule recognized in Jones, the mere presence of the subcontractor on the job site, through its agents, would not be sufficient to create the causal connection between performance of the subcontract and the loss.
The dissent in Jones interpreted "arising out of" as merely requiring "causation-in-fact." Noting that the subcontractor's presence on the job site, through its employee, was a "cause in...
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