On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4095-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Grall.
In this slip and fall case, plaintiff Catherine Di Filippi brought suit against Target Stores and All Jersey Janitorial Services alleging that defendants negligently maintained the property. At the time of the accident, Target had contracted with All Jersey to clean the floor where plaintiff fell. The trial court granted summary judgment as to liability in favor of both Target and All Jersey and against plaintiff.
Target then moved before the trial court to enforce an indemnification provision in its service contract with All Jersey. The trial court granted Target's motion, and ordered All Jersey to pay Target counsel fees it incurred in the defense of plaintiff's cause of action. In so doing, however, the trial court substantially reduced the amount of fees requested by Target.
All Jersey now appeals arguing that it has no duty to indemnify Target because plaintiff's claims against Target did not "arise out of" or "relate to" All Jersey's performance of the floor cleaning contract. Target argues that the trial court correctly decided this issue, because the protection afforded by the indemnification clause is not contingent upon a finding of fault on All Jersey's part.
By way of a cross-appeal, Target challenges the amount of counsel fees awarded by the trial court. According to Target, the court abused its discretion when it reduced the award of attorneys' fees by: (1) not taking into account all the relevant factors under R.P.C. 1.5(a); (2) differentiating between fees incurred in defending against liability and those incurred in enforcing the indemnification agreement; and, (3) making arbitrary and unsupported reductions.
After reviewing the record before us, and in light of prevailing legal standards, we affirm the trial court's decision requiring All Jersey to indemnify Target for counsel fees incurred in the defense of plaintiff's suit. As to the cross-appeal, we reverse the amount of fees awarded and remand for the trial court to consider and apply the factors listed in R.P.C. 1.5(a). The scope of the court's review shall also include counsel fees incurred by Target in enforcing the indemnification agreement.
The following salient facts are not disputed. Target and All Jersey entered into a service agreement whereby All Jersey agreed to perform floor cleaning services at Target's store in Middletown, New Jersey. The contract contained an indemnification clause, which provides:
7. Indemnification. Except as provided herein, [All Jersey] agrees to assume responsibility for all injuries or damages to persons or property which relate to or arise out of [All Jersey]'s performance of Services, [All Jersey]'s failure to perform its obligations under this Agreement, or the negligence or wrongful acts of [All Jersey] or its agents or employees. [All Jersey], to include his agents, servants, employees, assigns, independent contractors, or anyone else retained by [All Jersey] for the performance of [All Jersey]'s obligations under this Agreement, shall defend, indemnify and hold harmless Target and its agents and employees, from and against (1) any and all claims, suits, losses, damages, judgments or expenses (including attorney's fees incurred in responding to claims or suits) which relate to, arise out of, or are asserted or incurred as a result of, [All Jersey]'s performance of Services, [All Jersey]'s failure to perform its obligations under this Agreement, or the negligence or wrongful acts of [All Jersey] or its agents or employees; and (2) any claims made by [All Jersey]'s employees arising out of the performance of Services; provided, however, that the foregoing indemnity obligations shall not apply to injury, damage or loss caused by the sole negligence of Target.
The obligations under this paragraph shall survive the termination of this Agreement.
Plaintiff Catherine Di Filippi entered the Target store in Middletown on January 2, 2002, and, while walking towards the restroom, fell and injured herself. According to Di Filippi, the floor in the area where she fell was "very shiny." Her suit alleged negligent maintenance of the floor where she fell. At the end of the discovery period, both defendants moved for summary judgment on the issue of liability.
In granting summary judgment against plaintiff, the trial court made the following findings:
In this case, the Court has reviewed all of the moving paper[s] as well as the briefs submitted. And really, the seminal case on point is the [Overby v. Union Laundry Company 28 N.J. Super. ...