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Cozzi v. Owens Corning Fiber Glass Corp.

Decided: September 27, 1960.


Goldmann, Freund and Kilkenny. The opinion of the court was delivered by Goldmann, S.j.a.d.


Third-party defendant Pangia Construction Company (Pangia) appeals from judgment of $1,000 and costs rendered by the county district court in favor of third-party plaintiff Owens Corning Fiber Glass Corp. (Owens Corning) on its motion for summary judgment. The original suit, by plaintiff Cozzi against Owens Corning, was based on the latter's negligence and was uncontested. The third-party judgment was predicated on an indemnity clause whose construction forms the sole issue of this appeal. The summary judgment was based upon the following stipulation of facts between Owens Corning and Pangia:

On June 5, 1958 Pangia entered into a contract with Owens Corning to pave its yard and parking area. The terms of the contract appear on a form prepared by Owens Corning entitled "Purchase Order Services." On the reverse side of the form, entitled "Terms and Conditions for Purchase Order Services," appears the following indemnification clause:

"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."

Cozzi, a tractor operator employed by Pangia, was injured while working in the area alongside the building occupied by Owens Corning. 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 forced the sury out the window and onto 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 Corning and its employees. The work performed there by Owens Corning was independent of and totally unrelated to the work to be performed by Pangia. 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 that of Pangia's other employees, was independent of and totally unrelated to the work performed by Owens Corning or its employees.

Cozzi instituted suit in the county district court against Owens Corning, alleging that it negligently caused his injury. Owens Corning then filed a third-party complaint demanding judgment against Pangia for reimbursement of all or any part of such sum as might be found in favor of Cozzi against Owens Corning. Cozzi recovered $1,000 and costs against the latter.

The trial court concluded that the indemnification clause quoted above should be construed as extending to accidents like the one which resulted in injury to Cozzi -- an accident occasioned by the sole negligence of the indemnitee Owens Corning, owner of the premises, and resulting from an activity entirely under the control of Owens Corning and

unrelated to the work being performed by Pangia, the indemnitor. Pangia contends that such a construction was error and the motion for summary judgment should have been denied because the indemnification clause does not evidence an intention on the part of the contracting parties to cover an accident such as occurred here. The position of Owens Corning is that the clause is entirely clear and unambiguous, was purposely written broadly, and should be construed accordingly.

A contract of indemnity is to be interpreted in accordance with the rules governing the construction of contracts generally. The fundamental rule in construing contracts calls for the ascertainment of the intention of the parties in the light not only of the language used but also of the surrounding circumstances and the objects sought to be attained by them under their agreement. Stern v. Larocca , 49 N.J. Super. 496, 501 (App. Div. 1958). As stated in George M. Brewster & Son v. Catalytic Const. Co. , 17 N.J. 20, 32 (1954), in the case of an integrated contract the judicial quest "is for the reasonably certain meaning of the language used, taken as an entirety, considering the situation of the parties, the attendant circumstances, the operative usages and practices, and the objects the parties were striving to achieve. * * * [T]he chosen words and phrases are to be realistically assessed, in relation to the context and the obvious general purpose of the compact, for the meaning that is reasonably clear, such as is within the reasonable understanding of the symbols of expression."

The general rule appears to be that where the act of negligence of the indemnitee is the sole cause of the accident, he is not entitled to recover against the indemnitor unless an intent to indemnify is unequivocably spelled out in the contract, the surrounding circumstances, and the objects to be attained by the parties. See Annotation, 175 A.L.R. 8, ยงยง 18 and 19, pp. 29-34 (1948); George M. Brewster & Son ...

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