On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
Bischoff, Petrella and Brody. The opinion of the court was delivered by Brody, J.A.D.
Plaintiff was injured in the course of his employment while wheeling a 400-pound drum of solid waste to a large "roll-off" container in his employer's yard. The drum fell against his leg when he tripped over a deep rut in the soil near the container. Recently fallen snow covered the rut.
In plaintiff's personal injury action a jury attributed 25% negligence to him and 75% to defendant Browning Ferris Industries, Inc. (BFI), a solid waste hauler that leased the container to plaintiff's employer, third-party defendant Laminating Corporation of America (LCA). Under its lease agreement with LCA, BFI regularly sent a truck to the yard to empty the container. A mechanism on the truck pulled the container along the ground and onto the truck. A jury could have found that during this operation the wheels of BFI's truck or the wheels and guidetracks on the bottom of its container created the rut that caused the accident. Judgment was entered against BFI in the amount of $307,500.
In its third-party complaint BFI claimed the benefit of an indemnification provision in its lease agreement wherein LCA agreed to defend and hold BFI harmless from a claim such as plaintiff's. Before trial BFI and LCA moved for summary judgment regarding the enforceability of the indemnification
provision. The trial court denied BFI's motion but granted LCA's.
BFI appeals from that judgment and the judgment recovered against it by plaintiff. Its principal arguments regarding plaintiff's judgment are that there was no evidence of its negligence, it owed plaintiff no duty and the trial judge should have had the jury include in its apportionment a percentage for the negligence of LCA. Plaintiff's judgment is affirmed. LCA's judgment is reversed.
We turn first to the indemnification issue. The provision in question reads in pertinent part as follows:
[LCA] acknowledges that it has care, custody and management of [the container] owned by [BFI] and accepts responsibility for [it] and its contents except when it is being physically handled by employees of [BFI]. Therefore, [LCA] expressly agrees to defend, indemnify and hold harmless [BFI] from and against any and all claims for loss of or damage to property, or injury to or death of person or persons resulting from or arising in any manner out of [LCA's] use, operation or possession of the [container] furnished under this Agreement.
The trial judge interpreted this provision "as intended only to require [LCA] to indemnify [BFI] against those losses which result from [LCA's] negligence in connection with the possession or use" of the container. We disagree.
In a commercial setting parties are free to negotiate the allocation of tort liability risks regardless of fault. Berry v. V. Ponte & Sons, 166 N.J. Super. 513, 517-518 (App.Div.1979), certif. den. 81 N.J. 271 (1979). While a court will look closely at such an agreement when it purports to indemnify the indemnitee for his own negligence, the agreement will be enforced if that is what it unequivocally provides. Cozzi v. Owens Corning ...