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Schultz v. Lowe's Companies, LLC

United States District Court, D. New Jersey

June 10, 2019

LOWE'S COMPANIES, LLC, et al, Defendants.


          Hon. Joseph H. Rodriguez, United States District Court

         This matter comes before the Court on Motion of Defendant Lowe's Home Centers, LLC for partial summary judgment [Dkt. No. 36] pursuant to Fed.R.Civ.P. 56. The Court has considered the written submissions of the parties without oral argument pursuant to Fed.R.Civ.P. 78 (b). For the reasons stated below, Defendant's motion is granted.


         Plaintiff Brenda Schultz alleges that she tripped on an extension cord that was taped to the ground with duct tape and was placed in front of an entrance door of a Lowe's store in Turnersville, New Jersey. The cord was allegedly powering a popcorn machine, which was being used as part of a marketing event for the benefit of defendant, Sungevity, Inc. (“Sungevity”). The event took place outside of the Lowe's Turnersville, New Jersey store.

         Before the event took place, Lowe's and Sungevity entered into a Negotiated Master Standard Buying Agreement (“Agreement”). Then, Sungevity hired National Tour Integrated Resources, Inc. (“National Tour”) to set-up of the product display at the Turnersville store. As part of the display, the popcorn machine cord was taped to the ground by a representative of National Tour. Plaintiff's injuries form the predicate for the underlying lawsuit against Lowe's. Lowe's filed a crossclaim against Sungevity seeking indemnification under the terms of the Agreement.

         Article XII of the Agreement, entitled “Indemnification by Vendor (Sungevity), states in pertinent part:

“… Vendor agrees that it shall indemnify, hold harmless and defend, or in Lowe's sole discretion, fund the cost of defending, Lowe's, its directors, officers, employees, Board of Directors, customers, Lowe's other third-party vendors, agents, affiliates, shareholders, attorneys, assigns, designees and successors-in-interest (the “Lowe's Indemnitees”) from and against any and all liabilities, damages, losses, claims, lawsuits, proceedings, appeals, assessments, fines, product recalls, actions, causes of action …including, without limitation, claims for infringement, bodily injury …regardless of whether or not such Claim is caused, or alleged to have been caused, in part by a Lowe's Indemnitee, brought by Lowe's, its customers …”.

         Agreement, at Section 12.1.

         Sections 12.1 and 12.1(c) of the Agreement require indemnification of Lowe's where “the presence of Vendor's employees, agents or contractors on Lowe's owned or Lowe's controlled premises in connection with the performance of this Agreement.” Section 12.1 (f) provides for indemnification where the vendor has offered for sale, possession, or use one of their products. Section 12.1(g) provides for indemnification where there is an allegation involving an act or omission that violates a law, ordinance, code, rule or regulation. Finally, section 12.3(b) states that “for any claim Vendor shall be obligated to defend the Lowe's Indemnitee in question. Vendor shall pay all judgments against and assume the defense of Lowe's Indemnitees upon Lowe's Indemnitees' demand with respect to any claim, even if any such allegations of liability is groundless, false or fraudulent.”

         Defendant Lowe's moves for summary judgment on the crossclaim for contractual indemnification against Sungevity. Lowe's seeks to compel Sungevity, through its insurance carrier, to comply with the contract and indemnify and defend Lowe's with respect to Plaintiff Schultz' underlying claims. The issue before the Court is whether the indemnity provision is valid.[1]

         Summary Judgment Standard

         “Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law.” Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (a). Thus, the Court will enter summary judgment in favor of a movant who shows that it is entitled to judgment as a matter of law, and supports the showing that there is no genuine dispute as to any material fact by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56 (c)(1)(A).

         An issue is “genuine” if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally's Park Place, Inc., 870 F.Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. “A nonmoving party may not ‘rest upon mere allegations, general denials or . . . vague statements . . . ...

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