On appeal from Superior Court of New Jersey, Law Division, Ocean County, L-1109-98.
Before Judges Skillman, Carchman and Wells.
The opinion of the court was delivered by: Carchman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
OPINION CORRECTED 04-17-02
In a pre-trial motion, the motion judge determined that defendant Planned Building Services (PBS) was required to indemnify defendant Corporate Property Investors (the Mall) for damages arising from the Mall's negligence as well as pay all defense costs. We conclude that the Mall is not entitled to indemnification for its own negligence under its indemnification provision absent "explicit contractual language" required by Mantilla v. NC Mall Assocs., 167 N.J. 262 (2001). Accordingly, we reverse.
These are the relevant facts. Plaintiff Mary Azurak was injured when she slipped on a "cheese-type substance" and fell while shopping at the Mall. Plaintiff brought an action in the Law Division and, after relevant amendments, the issue was joined with both the Mall and PBS named as party-defendants. At the time of the incident, the Mall had contracted with PBS for the latter to provide janitorial services to the Mall. The contract contained the following provision:
Contractor [PBS] shall indemnify, defend and hold harmless each Indemnitee [the Mall] from and against any claim (including any claim brought by employees of Contractor), liability, damage or expense (including attorney's fees) that such Indemnitee may incur relating to, arising out of or existing by reason of (i) Contractor's performance of this Agreement or the conditions created thereby (including the use, misuse or failure of any equipment used by Contractor or its subcontractors, servants or employees) or (ii) Contractor's breach of this Agreement or the inadequate or improper performance of this Agreement by Contractor or its subcontractors, servants or employees.
Relying on the pleadings and pre-trial discovery, the motion judge granted the Mall's motion for summary judgment seeking indemnification and defense costs. The judge concluded as a matter of law that the indemnity provision is to be construed in accordance with the rules for the construction of contracts and, hence, the judicial task here is to ascertain the intention of the parties by reading the language, the surrounding circumstances, and the object sought to be obtained under the agreement. . . . [P]ursuant to Vitty v. [D.C.P. Corp., 268 N.J. Super. 447 (App. Div. 1993)] the cause of the claim may not be related to an act or omission in carrying out the duties required by the license and instead all that is required is that the injury or property damage grow out of or have its origins or be connected to the subject matter. And in construing the indemnity agreement doubt is required to be resolved in favor of the indemnitee.
In the case at hand, the slip and fall on the product on the floor in the common area where the plaintiff was allegedly injured grew out of, had its origin, or was in connection with the subject matter of the contract and the indemnification clause. Discovery need not disclose any other claims of negligence against CPI [the Mall] and the indemnification clause is applicable as in this case and the discovery will be the fall arose out of the duty to clean and maintain the floor. Motion is hereby granted.
After ordering indemnification and a defense, the judge then certified the judgment as final and PBS appealed.*fn1
While this appeal was pending, plaintiff's cause of action was tried resulting in a judgment against the Mall and PBS. Negligence was found as against all parties — plaintiff-30%; the Mall-30%; and PBS-40% — and the jury awarded plaintiff $7,600.16, which was then molded to reflect plaintiff's comparative negligence. After ...