On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket Nos. L-2909-07 and L-4496-07.
The opinion of the court was delivered by: Fisher, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Alvarez and Waugh.
The opinion of the court was delivered by FISHER, P.J.A.D.
In this appeal, we consider a dispute between defendant G&G Hotels, Inc. (G&G), and defendant Howard Johnson International, Inc. (HJI), triggered when Daniel O'Neill and Nicholas Sayles fell through a third-floor window of G&G's Atlantic City hotel on September 16, 2006. That fall, which killed Sayles and seriously injured O'Neill, generated these consolidated suits and, ultimately, the summary judgment in favor of HJI on its contractual indemnification claim and other related rulings, which we now examine.
In 1995, G&G and HJI entered into a license agreement, which permitted G&G's use of the Howard Johnson brand name; G&G remained an independent owner and operator of the hotel. The license agreement also contained an indemnity provision, which governs much of what we decide, and imposed an obligation on G&G to provide insurance coverage for HJI.
Prior to trial, HJI sought summary judgment against G&G on the basis of the indemnification provision. Finding the scrivener's efforts to be unartful -- noting the provision "is not a model of clarity" because it contained "too many, far too many disjunctives, conjunctives and commas, and an insufficient amount of periods" -- the trial judge nevertheless granted HJI's motion, finding enforcement of the provision here was consistent with the principles outlined in Azurak v. Corporate Property Investors, 175 N.J. 110, 111-12 (2003) and earlier cases.
A few months later, when the personal injury case came before the court for trial, a jury was selected but the parties soon thereafter announced a settlement of plaintiffs' claims. G&G, however, argued it was entitled to pursue before the jury its indemnification and contribution claims against HJI. The judge summarily dismissed those claims, leaving for disposition HJI's cross-claim against G&G for breach of the licensing agreement and attorneys' fees. By subsequent motion, the judge dismissed HJI's breach of contract claim and ordered G&G to pay attorneys' fees to HJI in the amount of $13,402.
G&G appeals, arguing that the trial judge erred: in granting HJI's summary judgment motion because, in G&G's view, the indemnification provision does not, as a matter of law, unequivocally express the parties' intent that G&G indemnify HJI for claims based on HJI's negligence; in granting HJI's summary judgment motion, claiming the alleged lack of clarity in the indemnification provision required fact finding; and in summarily dismissing G&G's contribution and common law indemnification claims.
HJI not only refutes G&G's arguments but also argues there were three additional reasons, not adopted by the trial judge, for affirming the order dismissing G&G's cross-claims, namely: G&G never filed cross-claims against HJI; G&G released all claims it had against HJI when terminating the license agreement in August 2007; and G&G provided factual statements in its discovery responses that belie its claim that the accident was caused by HJI's negligence. In addition, HJI cross-appeals, arguing the trial judge erred in denying HJI's summary judgment motion because: as a franchisor, HJI owed plaintiffs no duty and there was no evidence of HJI's direct negligence; plaintiffs' accident was not reasonably foreseeable; and HJI was entitled to relief based on G&G's failure to obtain the contractually-required levels of insurance coverage.
We reject G&G's arguments in support of its appeal because the indemnification provision sufficiently expresses the parties' intent that HJI would be entitled to indemnification from G&G for claims arising from HJI's negligence. In light of that disposition, we need not decide all the issues raised by HJI in opposition to the appeal and in support of its own cross-appeal, except that we conclude HJI is entitled to its fees and expenses in these appellate proceedings and adjudication of its ...