WESTERN STEEL ERECTION COMPANY v. CH LEAVELL & COMPANY

• Decision Date: 03 November 1967
• Docket Number: No. 18996.,18996.
• Citation: 384 F.2d 764
• Parties: WESTERN STEEL ERECTION COMPANY, Appellant, v. C. H. LEAVELL & COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

384 F.2d 764 (1967)

WESTERN STEEL ERECTION COMPANY, Appellant, v. C. H. LEAVELL & COMPANY, Appellee.

No. 18996.

United States Court of Appeals Eighth Circuit.

November 3, 1967.

Bridges, Young, Matthews & Davis, Pine Bluff, Ark., for appellee.

Rose, Meek, House, Barron, Nash & Williamson, Little Rock, Ark., for appellant.

Before MATTHES and LAY, Circuit Judges.

PER CURIAM.

This matter comes to us on a motion to dismiss an appeal from the order below. The appellee, C. H. Leavell & Company (hereinafter Leavell), moves to dismiss the appeal by Western Steel Erection Company (hereinafter Western) on the ground that the District Court's order is not a final, appealable decision within the meaning of 28 U.S.C. §§ 1291 or 1292.

The litigation in the lower court is an action brought by Priscilla Gail Gray, Administratrix of the Estate of Jones Robert Gray, deceased, to recover damages for the death of said deceased allegedly caused by the negligence of Leavell and of the United States of America. The decedent was killed while working for Western. Western was performing construction work for Leavell pursuant to a subcontract. The United States has cross-claimed against Leavell and Western, claiming among other things that both are contractually obligated to defend the United States. Leavell has cross-claimed against Western claiming that the latter must likewise indemnify Leavell. The agreement between Leavell and Western contained the following general indemnity clause:

"* * * Subcontractor agrees to protect, indemnify and hold harmless Contractor and/or Owner (and to defend at Subcontractor\'s expense all claims therefor) from (a) all liability, costs and expenses arising out of injury to (including death of) any and all persons and/or damage to property, growing out of or incidental, directly or indirectly, to the performance of this Subcontract regardless of how such injury, death or damage be caused, and from (b) all damage, judgments and expenses caused by any act or omission (whether or not negligent) of Subcontractor or anyone who performs work or services in the prosecution of the Subcontract. Subcontractor expressly assumes with respect to the work to be done hereunder all the liability imposed on the Contractor by the provisions of the General Contract. If there are any such injuries to person or property unsettled upon completion of this Subcontract, final settlement between the Contractor and Subcontractor may be deferred at the option of Contractor until such claims are adjusted or suitable indemnity acceptable to the Contractor is furnished by the Subcontractor." (Emphasis ours.)

Pursuant to the above indemnity clause, Leavell filed a motion for summary judgment asking that Western be declared responsible to defend Leavell in the negligence action; that Western pay Leavell all costs incurred during its own defense of the lawsuit; and that Western be declared liable to indemnify Leavell for any judgment rendered in such lawsuit. On June 27, 1967, the District Court entered an order which found that Western was obligated to fully defend Leavell in this lawsuit, and required Western to reimburse Leavell for its own costs expended in their defense to date. The order also provided that the "decision on that portion of Leavell's motion for summary judgment pursuant to the indemnity provisions of said contract is expressly reserved for further orders or judgment of this court." Upon Western's appeal from this order, Leavell moved to dismiss the appeal on the ground that the order was not final as required by 28 U.S.C. § 1291; that it was not an appealable interlocutory order within the purview of 28 U.S.C. § 1292(a); and that Western has not satisfied the prerequisites for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

Western, in response to the motion to dismiss, argues that the June 27, 1967, order is reviewable under 28 U.S.C. § 1291, because of the "collateral order doctrine," approved in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-547, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). In that case, the...