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McCabe v. Great Pacific Century Corp.

Decided: November 6, 1989.

ROBERT MCCABE AND JOANNE MCCABE, HIS WIFE, PLAINTIFFS,
v.
GREAT PACIFIC CENTURY CORPORATION, AND ABLE CORPORATION, DEFENDANTS. PATENT SCAFFOLDING COMPANY, DEFENDANT-THIRD-PARTY PLAINTIFF, AND HUBER, HUNT & NICHOLS CONSTRUCTION CO., DEFENDANT-THIRD-PARTY PLAINTIFF, RESPONDENT-CROSS-APPELLANT, V. POWER ELECTRIC COMPANY, THIRD-PARTY DEFENDANT, APPELLANT-CROSS-RESPONDENT, AND WURMFELD ASSOCIATES, P.C., MORLOT CARPENTRY, INCORPORATED, LOXCREEN ARCHITECTURAL PRODUCTS, INCORPORATED, AND MOPAL CONTRACTING CORPORATION, THIRD-PARTY DEFENDANTS



On appeal from Superior Court of New Jersey, Law Division, Bergen County.

J.h. Coleman and Skillman. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

Defendant, Huber, Hunt & Nichols Construction Company (Huber), was the general contractor for the construction of a high rise apartment complex. Plaintiff, Robert McCabe, was employed by Power Electric Company (Power), the subcontractor for the electrical work on the project. Plaintiff was injured on the job site when he was struck by a moving exterior elevator. He brought this action against Huber and other allegedly responsible parties. Huber filed a third-party complaint which, as amended, named all its subcontractors on the project including Power as third-party defendants. The third-party complaint was based on the indemnification clauses in Huber's contract with Power and the other subcontractors.

The trial court dismissed Huber's third-party complaint on the ground that the validity of the indemnification clause was governed by Indiana law, which invalidates such clauses. We reversed in a reported opinion which concluded that the validity of the contractual indemnification clause was governed by New Jersey law, and that such clauses were then valid under our law. McCabe v. Great Pacific Century, 222 N.J. Super. 397 (App.Div.1988).

Shortly thereafter, Huber moved for summary judgment on its contractual indemnification claim. The trial judge granted this motion for reasons set forth on the record on May 17, 1988. Almost immediately thereafter, Power filed a motion for reconsideration and a cross-motion for summary judgment. All the parties, including Huber and Power, appeared in court for trial on May 24, 1988. At that time, the trial judge denied Power's motion for reconsideration and its cross motion for summary judgment.

On the following day, the parties reported to the court that a settlement had been reached pursuant to which plaintiffs would receive $600,000: $200,000 from Huber, $300,000 from Power and $100,000 from other defendants. Both Power and Huber agreed that the settlement did not affect Power's right to

appeal the trial judge's interpretation of the contractual indemnification clause and that the prevailing party on that issue would be reimbursed by the other party for the amounts it had contributed to the settlement. In addition, Huber reserved its right to appeal the court's implicit denial of its request for an award of attorneys fees from Power.

Power appeals from the orders granting Huber summary judgment on its contractual indemnification claim and denying Power's motions for reconsideration and for summary judgment. Huber cross appeals from the order denying its application for counsel fees.

We conclude that the trial judge misconstrued the contractual indemnification clause. Therefore, we reverse the order granting summary judgment in favor of Huber on its contractual indemnification claim. We also dismiss Huber's cross appeal as moot.

Power contends that the trial judge abused her discretion by failing to apply law of the case principles to the ruling of another judge in denying Huber's prior motion for summary judgment. We agree that the trial judge's construction of the indemnification clause was inconsistent with the motion judge's construction of the same clause. However, the law of the case doctrine rests within the discretion of the court which is "never irrevocably bound by its prior interlocutory ruling in the same case." Sisler v. Gannett Co., Inc., 222 N.J. Super. 153, 159 (App.Div.1987), certif. den. 110 N.J. 304 (1988). In any event, whatever the appropriate role of the law of the case doctrine in the trial judge's consideration of this matter, it is our responsibility to determine the correct interpretation of the indemnification clause. Therefore, we proceed directly to this issue.

The indemnification clause provided that:

Subcontractor further specifically obligates himself to Contractor . . . (b) to indemnify Contractor and save it harmless from any and all claims, suits or liability resulting from any act or omission of Subcontractor, or Contractor, or their ...


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