On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-219-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and St. John.
Defendant Greenview Landscaping Contractors, Inc., (Greenview) appeals from a Superior Court order concluding Greenview was contractually obligated to indemnify defendant Beverly Hills Terrace Condominium Association (the Association) for counsel fees incurred by the Association to defend against a negligence action filed by plaintiff Gladyne Franchini, who slipped and fell on ice located on the Association's property. We reverse.
These facts are taken from the motion record. Plaintiff, an owner of a unit at the Beverly Hills Terrace Condominiums, alleged she sustained injures after she fell on an icy sidewalk in front of her condominium unit at approximately 7:00 a.m. on February 4, 2004. The one count complaint named the Association and Greenview as defendants, asserting defendants were negligent "in failing to adequately inspect and/or maintain" the sidewalk area. Specifically, plaintiff asserted the Association "owned, operated, maintained and/or controlled the property" and Greenview was "responsible for maintaining the exterior premises including the removal of snow and ice and/or salt and/or sand [from] said premises."
Plaintiff testified during the jury trial, stating her accident occurred early in the morning when it was "like dusk, there was no light out[,]" and the area had no streetlights.
Peering out her French doors, she noticed the sidewalk "looked wet, it looked like moisture was on the ground." As she headed toward her car parked in a nearby lot, she "veered" toward the grassy area, rather than walking on the sidewalk. As plaintiff "left the grass area [stepping back] onto the sidewalk," she immediately fell. Plaintiff testified she "felt the ice as [she] was gripping the sidewalk to level [her]self back up in a standing position," although she acknowledged she could not see any ice. Plaintiff suffered injuries to her left shoulder, neck, and elbow.
Following plaintiff's testimony, a colloquy occurred outside the presence of the jury. Plaintiff agreed to voluntarily dismiss the complaint against the Association, because any claim of liability "was derivative" and based on Greenview's alleged negligence. However, Greenview declined to dismiss its cross-claim against the Association. The Association's later filed motion for summary judgment as to liability on Greenview's cross-claim was denied. At the close of defendants' testimony, the Association renewed its motion for summary judgment, which again was denied, without prejudice.
Following deliberations, the jury issued a defense verdict, determining neither the Association nor Greenview were negligent and plaintiff had not supported a cause of action. Post-trial, the Association moved for indemnification, seeking Greenview's reimbursement of its attorney's fees and litigation costs incurred in defending against plaintiff's suit.
We pause to discuss the foundation for the Association's indemnification claim. Prior to plaintiff's fall, the Association executed a one-year contract with Greenview to perform snow removal and salting services. Attached to the November 1, 2003 contract, was a signed proposal setting forth the services Greenview would provide in the event of freezing rain, which included "[s]alt[ing] all lots, entrances and exits. . . . Clearing the sidewalks using just calcium chloride[.]" Greenview "expressly warrant[ed] full and complete compliance with the [s]pecifications and expressly warrant[ed] that all work done shall be completed in a workmanlike manner."
Section 13 of the contract contained an indemnification clause, which provided:
The Contractor hereby agrees to indemnify and save harmless the Association from liability for any damage or loss that occurs during or in connection with the Contractor's performance of the contract work, whether it be caused by the negligence or fault of the Contractor, its agents, employees, subcontractors or servants, or otherwise. It is the intent of the parties that the contractor's indemnification and save harmless obligations hereunder are not contingent upon contractor's fault.
The Contractor agrees to defend the Association against any claims brought or actions filed against the Association with respect to the subject of the indemnity contained in this agreement, whether such claims or actions are rightfully or wrongfully brought or filed. With ...