On June 5, 1958, Pangia Construction Company, hereinafter referred to as "Pangia," entered into a contract with Owens Corning Fiber Glass Corp., hereinafter referred to as "Owens," to pave its yard and parking area. The terms of the contract appear on a form prepared by "Owens," entitled "Purchase-Order Services." On the reverse side of the form, entitled "Terms and Conditions for Purchase Order-Services," appears an indemnification clause as follows:
"ARTICLE 20. Indemnification of Owner:
The Contractor hereby agrees to save and indemnify and keep harmless the Owner against all liability claims and judgments or demands for damages arising from accidents to persons or property occasioned by the Contractor, his agents or employees, and against all claims or demands for damages arising from accidents to the Contractor, his agents or employees, whether occasioned by said Contractor or his employees or by Owner or his employees or any other person or persons and the said Contractor will defend any and
all suits that may be brought against the Owner on account of any such accidents and will make good to, and reimburse, the Owner for any expenditures that said Owner may make by reason of such accidents."
George Cozzi, a tractor operator employed by Pangia as contractor, was injured while working in the area alongside the building occupied by Owens as owner. His injury was caused when hot waste kaylo, commonly called "sury," came through a window of the second floor of the building and spilled on him. The "sury" was caused to splash out of the window when the holes in the lid of the pre-heater, the machine in which it was contained, became clogged. Because the holes were clogged, the steam pressure which usually escapes from them was trapped. The additional pressure thus built up and forced the "sury" out the window and on to Cozzi.
The premises in which the machine was used and the machine itself were at all times in the exclusive control and possession of Owens and its employees. The work performed there by Owens was independent and totally unrelated to the work to be performed by Pangia. George Cozzi, the injured employee, had a right to be in the area alongside the building at the time of his injury and his work, like the other employees of Pangia, was independent of and totally unrelated to the work performed by Owens or its employees.
George Cozzi instituted suit in this court against Owens, the owner, alleging that Owens through its servants and agents negligently caused his injury. Owens then joined Pangia, the contractor, as a party to the suit by a third-party complaint demanding judgment against Pangia for indemnification, reimbursement and payment of all or any part of any sum which may be found in favor of plaintiff Cozzi against the third-party plaintiff Owens. A verdict was entered in favor of the plaintiff Cozzi against Owens in the sum of $1,000 and costs. The matter presently to be decided is the liability, if any, of the plaintiff's employer,
Pangia, the contractor, to the owner, Owens, for the latter's negligence under the indemnification agreement heretofore outlined.
The contract of indemnity referred to in this action made no reference to accidents occurring "to any person or persons, by or on account of the prosecution of the work," which was passed upon in Stern v. Larocca , 49 N.J. Super. 496 (App. Div. 1958), or the expression "occasioned by the operation and handling" of the equipment or "occasioned through the equipment," as in Brewster & Son, Inc. v. Catalytic Const. Co. , 17 N.J. 20 (1954), or "tenant to make all repairs to the sidewalks adjacent to the premises, and to indemnify and hold harmless the municipality from any and all claims arising out of the lessee's conduct and management of the premises and adjacent sidewalks," as in Longi v. Raymond-Commerce Corp. , 34 N.J. Super. 593 (App. Div. 1955). The indemnity provision in this case delineated for purpose of construction reads as follows:
"For damages arising from accidents to the contractor, his agents or employees whether occasioned * * * by ...