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Heuring v. Dillon Steel Corporation

April 19, 2001

KEITH T. HEURING, PLAINTIFF,
v.
DILLON STEEL CORPORATION; INFANTE ASSOCIATES, INC., MIKE CARTER CONSTRUCTION, INC., PUBLIC STORAGE, INC., E & E IRONWORKS, INC. DEFENDANTS. - AND - INFANTE ASSOCIATES, INC., DEFENDANT/THIRD PARTY PLAINTIFF,
v.
E & E IRONWORKS, INC., THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Bassler, District Judge

FOR PUBLICATION

MEMORANDUM OPINION

The parties seek an in limine ruling from the Court regarding whether Defendants Mike Carter Construction Company and Infante Associates, Inc. are entitled to indemnification from co-Defendant Dillon Steel Corp.

I. BACKGROUND

This matter involves an injury sustained by Plaintiff Keith Heuring ("Plaintiff") while working at a construction site. The owner of the site, Public Storage, Inc. ("Public"), contracted with Mike Carter Construction Company ("Mike Carter") to act as Public's agent and general contractor in constructing a storage warehouse. In turn, Mike Carter hired Infante Associates, Inc. ("Infante") to act as the on-site general contractor. Infante then contracted with Defendant Dillon Steel Corp. ("Dillon") to furnish and install the structural steel, stairs and railings in the warehouse. Dillon contracted with E&E Ornamental Iron ("E&E") to erect the steel structures. Plaintiff was an employee of E&E. Trial in this matter has been adjourned on numerous occasions and has been scheduled for July 24, 2001.

The Court must determine whether as a matter of law, Defendants Mike Carter and Infante are entitled to contractual indemnification from co-Defendant Dillon under the indemnification provisions contained in the contract between Mike Carter and Infante ("Mike Carter-Infante contract") and the contract between Infante and Dillon ("Infante-Dillon contract").

In interpreting the indemnity clauses, the Court must look to the rules governing the construction of contracts generally. See Ramos v. Browning Ferris Industries of South Jersey, Inc., 103 N.J. 177, 191 (1986). "When the meaning of the clause is ambiguous, however, the clause should be strictly construed against the indemnitee. [citations omitted]. Thus, a contract will not be construed to indemnify the indemnitee against losses resulting from its own negligence unless such an intention is expressed in unequivocal terms. [citations omitted]." Id. at 191-92.

II. DISCUSSION

A. Infante's Right to Indemnification from Dillon

1. Section 5(g) of the Infante-Dillon Contract

Infante claims that it is entitled to contractual indemnification from Dillon for any liability attributed to Infante provided that the liability is not 100%. *fn1 In contrast, Dillon argues that it is only obligated to indemnify Infante to the extent that the jury finds Plaintiff's injuries were caused by Dillon's negligence. The Court agrees with Dillon.

The Infante-Dillon contract provides that Dillon is:

(g) [t]o indemnify the Contractor [Infante] against the claims of all materialmen and employees of the Subcontractor, including Court costs and attorney's fees incurred in the defense of any litigation instituted by any officer, employee, laborer or materialmen of the Subcontractor or of any other person or persons, firm or corporation who may claim damages for person or property by reason of the acts or failure to act of the Subcontractor, or its Agents, employees, servants or both; to which the Contractor is made a party.

(q) [t]o protect and save harmless the said Contractor against any claim or demand of any persons or property for damage caused hereunder . . . and agrees to defend any and all actions arising out of any of the foregoing claims; to notify the Contractor of all such claims; to defend it, and pay ...


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