Summary Judgment Motions Addressed in Snow Slip and Fall Case

In the case of Snair v. Speedway, LLC, No. 1:18-CV-00376-CCW (W.D. Pa. Jan. 19, 2021 Wiegand, J.), the court granted in part and denied in part motions for summary judgment filed by a gas station, a snow removal service company, and that company’s subcontractor in a Plaintiff’s action for an alleged slip and fall event that allegedly occurred in a gas station parking lot matter.

The court found that there were genuine issues of material fact as to any constructive notice on the part of the gas station.

The court also found that there were genuine issues of material fact as to whether or not the snow removal service company owed any duty to the Plaintiff. Moreover, the court found that the subcontractor was not liable for indemnity or contribution under its contract.

According to the Opinion, the Plaintiff slipped and fell at the gas station while refueling his truck.

The Defendant gas station had contracted with the snow removal service company to provide snow and ice removal services at the gas station. That snow removal service company had contracted with a Defendant subcontractor to complete the plowing the salting.

The Plaintiff argued in opposition to the Motion for Summary Judgment that, since the snow and ice were under a canopy and was dirty, a jury could infer that the snow had been present for a significant period of time such that the gas station owner should have cleared the same. The Plaintiff also presented evidence that station employees were supposed to check for snow and ice around the pumps throughout the day and there was no evidence that any inspection had been performed from one day to the next leading up to the incident. As stated, the court found issues of material fact with respect to the potential liability for the gas station company and allowed that claim to proceed to a jury.

The court also found issues of fact regarding the Defendants argument that the “choice of ways doctrine” barred recovery for the Plaintiff. The court noted that there were issues of material fact as to whether the Plaintiff failed to avoid an obvious hazard and also chose a dangerous route over a safe route.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 4, 2021).

Duty to Defend Supports Cross-Claim for Non-payment of Defense Legal Fees

In the case of Huffsmith v. PPL Electric Utilities Corporation, No. 11-CV-1012 (C.P. Lacka. Co. Sept. 5, 2019 Nealon, J.), the court addressed the issues surrounding a duty to defend and a duty to indemnify relative to a cross-claim asserted by one Defendant against a Co-Defendant. 

According to the Opinion, PPL Electric Utilities Corporation retained a contractor to perform tree removal services around transmission lines. 

Under the contract between the parties, the tree removal services contractor was obligated to indemnify the utility company for any personal injury or property damages claims resulting from the contractor’s work. Under the contract, the contractor also had a separate duty to defend at its own expense, with counsel acceptable to PPL, any suit or action brought against PPL based upon such claims. 

In an underlying matter, landowners filed a trespass action against the utility company and the tree removal services contractor for allegedly improperly moving seventeen (17) fully grown evergreen trees from the landowner’s property. There was a dispute in that matter as to whether or not the trees were within PPL’s lawful right-of-way. 

During the course of that litigation, PPL tendered its defense of the lawsuit to the contractor under the contract. 

However, the tree removal services contractor’s insurance company rejected PPL’s tender of its defense under an argument that the contractor’s duty to defend PPL would arise only if PPL became obligated to make a payment on the landowners’ trespass claim by virtue of a settlement or a verdict. 

As such, PPL retained its own defense counsel and, in the lawsuit, asserted a cross-claim against the contractor seeking to recover its own defense cost and counsel’s fees based upon the contractor’s breach of its contractual duty to defend. 

The case was litigated to a successful conclusion with a jury finding that the utility and the contractor had not trespassed upon the landowners’ property. 

Pursuant to a Stipulation between the two (2) Defendants, PPL’s crossclaim against the contractor was then subsequently submitted to a non-jury decision before Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas under Pa. R.C.P. 1038.

In this decision, Judge Nealon held that, although the contractor’s duty to indemnify the utility was contingent upon PPL’s liability for a payment for the landowner as a result of a settlement or verdict, the contractor’s duty to defend the utility went into effect once the landowner’s filed their lawsuit against both the PPL and the contractor for property damages allegedly caused by the contractor’s tree removal activities. 

Accordingly, the court ruled that the contractor breached its contractual duty to defend PPL in this matter.  The contractor was found to be liable for compensatory damages in the amount of the reasonable and necessary counsel fees and costs incurred and paid by PPL in defending this trespass action as well as in pursuing its cross-claim to recover those costs of defense. The court found that the defense costs and fees in the amount of $148,235.18 were reasonable and necessary to defend the lawsuit, which fees included litigation of an appeal and a remand by the appellate court.

Anyone wishing to review a copy of this decision may click this LINK.

Intermediate Form of Indemnity Agreement in Contractor-Subcontractor Construction Agreement Found

In its recent unpublished "non-precedential" decision in the construction accident case of Bracken v. Burchick Construction, 1432 WDA 2012 (Pa. Super. Oct. 10, 2014 Panella, J.), the Pennsylvania Superior Court found that language used in the parties’ Subcontractor Agreement was sufficient to establish an intent to enter into an intermediate form of an indemnity agreement such that, after waiving its immunity under the Workers’ Compensation Act, a subcontractor may be deemed to possibly be required to reimburse the general contractor for a $3.1 million dollar settlement owed after the death of the subcontractor’s own employee as a result of a work place accident.  

According to the Opinion, the decedent Plaintiff’s representative filed a lawsuit against the general contractor for the construction project.  The general contractor then filed a Complaint to join the Plaintiff’s decedent’s employer, who was a subcontractor on the same work site.  

The court found that under language contained in the Subcontractor Agreement, the subcontractor agreed to assume the entire liability for any injury or death suffered by its employees as a result of the subcontractor’s negligence.   The court viewed the language of the subcontract to be considered an intermediate form of an indemnity agreement.   Accordingly, the subcontractor was found to have agreed to indemnify the general contractor for the entire liability if the liability stems from the subcontractor’s partial or sole negligence.

 

Judge Panella's majority Opinion can be viewed HERE.

 

Judge Olsen's dissenting Opinion can be viewed HERE.

 

 

 

 

 

 

Judge Nealon of Lackawanna County Finds No Waiver of Immunity by Employer Through Indemnification Clause

In his recent February 25, 2014 Opinion and Order, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the issue of an employer's waiver of tort immunity by way of an indemnification clause in a contract in the case of Fritz v. Versacold Logistics, LLC, et al., No. 2012 - CV - 700 (Lacka. Co. Feb. 25, 2014 Nealon, J.).

In this premises liability slip and fall personal injury matter, a commercial landowner defendant joined its trucking company contractor as an additional defendant based upon an indemnification clause in their motor carrier transportation contract.

The additional defendant trucking company filed a motion for summary judgment arguing that it was immune from liability on the grounds that the plaintiff was its employee at the time of the subject incident and had received worker's compensation benefits from the additional defendant's worker's compensation carrier.  The additional defendant trucking company also asserted the indemnification clause in the contract did not contain language that was specific enough to avoid the immunity afforded to the trucking company under the Worker's Compensation Act.

The commercial landowner countered the additional defendant's motion for summary judgment with an argument that there were issues of fact as to the identity of the plaintiff's employer, as well as by arguing that the indemnification provision in the parties' contract enabled the landowner to seek contribution or indemnity from the trucking company.

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon granted the additional defendant trucking company's motion for summary judgment after finding that judicial admissions in the landowner's pleadings had established that the plaintiff was indeed an employee of the trucking company. 

The court also reviewed the law on the validity of indemnification clauses and found that the language in the clause at issue in this matter did not satisfy the requirements under the Worker's Compensation Act to allow for a waiver of the immunity afforded by that Act.  More specifically, the contract language of the clause at issue did not expressly refer to tort claims by the additional defendant's employees resulting from the landowner defendant's negligence.



Anyone wishing to review Judge Nealon's Opinion in the Fritz case may click this LINK.

For other decisions by Judge Nealon on the validity of an indemnification clause, click HERE and HERE.


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