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Patrick Smith, Jr v. Toys "R" Us


September 5, 2012


On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-10549-06.

Per curiam.


Argued September 28, 2011

Before Judges Fuentes, Graves, and J. N. Harris.

Defendant third-party plaintiff Toys "R" Us-Delaware, Inc. (Toys), appeals from summary judgment orders in favor of third-party defendants WillStaff Crystal, Inc. (WillStaff) and Hartford Fire Insurance Company (Hartford), and a subsequent order denying Toys' motion for reconsideration. We affirm.

Plaintiff Patrick Smith, Jr., was seriously injured on November 6, 2006, when he fell approximately fifteen feet from the mezzanine level of a warehouse to a concrete floor below. At the time of the accident, plaintiff was employed by WillStaff, a temporary employment agency. Plaintiff was working at Toys' warehouse located in Flanders, New Jersey, pursuant to a service agreement (Agreement) between WillStaff and Toys. At his deposition, plaintiff testified he was guiding a pallet of Toys' merchandise from a forklift onto a roller conveyor system when he "slipped on one of the wheels" that was part of the roller conveyor and "that caused [him] to fall." Plaintiff also testified there were no guardrails or "any safety precautions of any sort" in the area where he fell.

Following the accident, plaintiff filed a workers' compensation claim against WillStaff and received workers' compensation benefits. Plaintiff also commenced this action alleging that Toys' negligence and intentional misconduct caused his injuries. In a third-party complaint, Toys asserted an indemnification claim against WillStaff and an insurance coverage claim against Hartford based on the Agreement between WillStaff and Toys, which required WillStaff to obtain a general liability policy with Toys named as an additional insured.

Paragraph three of the Agreement stated that "none of the associates placed by WillStaff [at Toys] will be considered an employee of [Toys]," and the parties further agreed in paragraph four that "WillStaff associates are employees of WillStaff only." In addition, paragraph nineteen of the Agreement, entitled "Indemnification," provided as follows:

WillStaff shall defend and indemnify [Toys] . . . and shall hold [it] harmless against any damage, claims, suits, actions, liabilities, loss, costs and expenses, including reasonable attorneys' fees, arising out of or alleged to have arisen from a breach of the representations, warranties or obligations of WillStaff under this Agreement or the Services performed by WillStaff (including any related act of omission by WillStaff), including but not limited to workers' compensation claims, except to the extent the foregoing is caused by the gross negligence or the willful misconduct of [Toys] or the [Toys] Indemnitees, excepting those claims, losses, demands resulting from the operation of vehicles or equipment owned, leased or in the care, custody, and control of Toys R Us that may be operated by any employee of WillStaff. [Toys] also agrees to the terms and conditions of Appendix "D" attached.

In Appendix D of the Agreement, Toys agreed to hold WillStaff harmless from any and all loss, liability, or claims "arising from and/or in the course of the operation of vehicles or machinery while on an assignment with [Toys]." According to Appendix D, "vehicles" included, "but [was] not limited to cars, vans, trucks, and similar devices for transporting people, goods and/or materials." It also stated: "Machinery includes, but is not limited to mobile and fixed construction equipment: drills, drill presses, grinders, and saws; dozers, graders, cranes, loaders, excavators, tractors; and also industrial trucks, forklifts, and similar motorized mechanical material handlers. (This list is illustrative and is not inclusive)."

Pursuant to paragraph eleven of the Agreement, WillStaff was required to obtain a general liability insurance policy in the amount of at least three million dollars with Toys named as an additional insured. The policy that WillStaff obtained from Hartford complied with this requirement, and the policy was in effect at the time of the accident. The Hartford policy covered Toys, as an additional insured, with respect to liability for bodily injury "caused, in whole or in part, by [WillStaff's] acts or omissions or the acts or omissions of those actions on [WillStaff's] behalf."

Following the completion of discovery Toys, WillStaff, and Hartford cross-moved for summary judgment. The trial court denied Toys' motion and granted the motions filed by WillStaff and Hartford on June 12, 2009, and the court subsequently denied Toys' motion for reconsideration. The court concluded that WillStaff did not agree to indemnify Toys for its own actions or omissions or for liability resulting from the operation of Toys equipment and machinery. The court also ruled that Hartford was not required to defend and indemnify Toys because the additional insured coverage applied only "to claims alleging liability based on WillStaff's acts or omissions."

Toys ultimately entered into a stipulation of dismissal with plaintiff. On appeal, Toys primarily argues that it is "entitled to indemnification and defense from WillStaff under the agreement," and "from Hartford under the insurance policy." We do not agree.

A trial court's grant of summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). When reviewing a trial court's grant of summary judgment, an appellate court utilizes the same standard applied by the trial court. See, e.g., Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We must first determine "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). If there is no genuine issue of material fact, we must then decide whether the trial court's application of the law was correct. Id. at 537. "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Contractual indemnity agreements are "to be construed in accordance with the rules for construction of contracts generally." Mantilla v. NC Mall Assocs., 167 N.J. 262, 272 (2001) (citation omitted). Our goal is to ascertain the intention of the parties from the language used, the surrounding circumstances, and the object the parties sought to attain. Onderdonk v. Presbyterian Homes of N.J., 85 N.J. 171, 183-84 (1981) (citing Atl. N. Airlines v. Schwimmer, 12 N.J. 293, 301 (1953)). "The judicial task is simply interpretive; it is not to rewrite a contract for the parties better than or different from the one they wrote for themselves." Kieffer v. Best Buy, 205 N.J. 213, 223 (2011).

In this case, the trial court determined that neither WillStaff nor Hartford agreed to defend and indemnify Toys for its own negligence, and the court further found that Toys was responsible for making sure that its equipment and machinery were "safe to use." These findings are supported by substantial credible evidence in the record, and we discern no basis to intervene. See Azurak v. Corporate Prop. Investors, 175 N.J. 110, 112-13 (2003) ("[I]n order to allay even the slightest doubt on the issue of what is required to bring a negligent indemnitee within an indemnification agreement, we reiterate that the agreement must specifically reference the negligence or fault of the indemnitee."); see also Kieffer, supra, 205 N.J. at 224 (stating that a party is ordinarily "responsible for its own negligence, and shifting liability to an indemnitor must be accomplished only through express and unequivocal language"). Toys' remaining arguments do not warrant any additional discussion. R. 2:11-3(e)(1)(E).*fn2


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