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May 12, 1992


Appeal from the Superior Court of the District of Columbia; (Hon. Richard A. Levie, Trial Judge).

Before Rogers, Chief Judge, and Terry and Steadman, Associate Judges.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge : Appellant Griffith Consumer Company appeals the denial of its motion for attorneys' fees incurred in defense of a suit for damages caused by the negligent removal of an oil boiler by its agent, appellee Spinks Company. Griffith contends that the trial Judge erred because Griffith was forced to defend itself solely as a result of Spinks' negligence and because it was wrongfully involved in the litigation. We affirm.


On July 25, 1986, Mr. Parviz Sarem entered into a written contract with appellant Griffith Company for the removal and replacement of an oil boiler in his apartment building at 1701 Kilbourne Place, N.W. Griffith, in turn, entered into an oral contract with appellee Frank W. Spinks, trading as Spinks Company, to perform the work on Mr. Sarem's premises. Thereafter Spinks removed the old oil boiler and installed its replacement. While removing the old boiler, however, Mr. Spinks and two other employees of Spinks chipped one of the steps leading to the basement in which the boiler had been housed. Mr. Spinks told Mr. Sarem, who was watching the removal of the old boiler, that he would repair the step. Mr. Spinks also notified Griffith about the damage to the step.

On January 15, 1987, Mr. Sarem filed a pro se complaint against Griffith for negligence, alleging that the two men removing the boiler had "dropped it on each step as they came up from the basement and again as they went down the front steps to the street, cracking all the concrete steps to the apartment building." Mr. Sarem also alleged that the installers had "completely destroyed" a "brick column at the top of the steps." He asked for $50,000 in damages and legal costs. No express allegation was made regarding Griffith's actions or inactions. Griffith answered on February 17, 1987, admitting the existence of the July 25th contract but denying all allegations and raising various defenses, including that the claim was barred by the provisions of the contract. *fn1

The following day, February 18, 1987, Griffith filed a third-party complaint against Spinks, claiming on the basis of the subcontract that if there was any damage caused by Spinks, Griffith would be entitled the the full amount of whatever judgment was awarded to Mr. Sarem, plus costs, interest and attorneys' fees. Griffith also made formal, written requests, beginning in June 1987, that Spinks assume, through its insurer, Griffith's representation in the lawsuit, stating that "all of the plaintiff's allegations of negligence center on the activities of [Spinks'] employees," and advising further that Griffith would look to Spinks for recovery of all costs associated with defense of the case. Spinks refused to assume the defense. *fn2

After a bench trial on March 19, 1990, the Judge found that Mr. Sarem had failed to prove his claims that extensive damage to the steps and the brick column "was caused by the actions of Griffith Consumers or the independent contractor, Mr. Spinks and his son." However, the Judge noted that there was "one exception to that finding," based on Spinks' testimony that there was damage to the lower step caused when Mr. Spinks and his son brought the old boiler out, and therefore, the Judge found that the defendant liable and entered a judgment against Griffith for $650 in damages, which represented the trial Judge's estimate of the reasonable value of the damage admittedly caused by Spinks to one of the steps. *fn3

Thereafter, Griffith filed a motion to make additional findings and to amend the judgment, seeking entry of judgment against Spinks on the third-party complaint. Spinks, in response, suggested that the findings of fact should show, as Mr. Spinks had testified, that Griffith, which inspected Mr. Sarem's premises and drew up the contract, should have notified Mr. Spinks of the condition of the property because, had he known, he would not have entered the property without advising Mr. Sarem of the possibility of slight damage in removing the boiler from the basement. Spinks further noted that it had paid the $650 damages plus costs, that there was no written contract of indemnification between it and Griffith, and that had Griffith wished to enter into such an indemnification contract it would have done so. Griffith responded that it was undisputed that it had requested Spinks to defend the case and to indemnify Griffith for its costs related to the defense because Spinks was functioning as an independent contractor under an oral agreement, and further, that Spinks' refusal to defend was evidence of bad faith because Spinks provided all of the work, labor and materials for removal and installation of the gas boiler. The trial Judge denied Griffith's motion to amend the judgment as moot since the judgment had been paid, and also denied Griffith's motion for attorneys' fees and costs.


On appeal, Griffith makes no claim that the trial Judge erred by granting judgment in favor of Mr. Sarem against Griffith and not against Spinks, nor by denying Griffith's motion for findings on the third-party complaint. Instead, Griffith contends that the trial Judge erred by denying its motion for attorneys' fees because Griffith was forced to defend itself solely because of the negligence of Spinks. *fn4 Griffith argues that it was not found to be a joint tortfeasor, that Spinks' employees were the only persons whose activity on Mr. Sarem's premises caused the damage complained of by Mr. Sarem, and that the amount of monetary damages was based solely on the admissions by Spinks of its negligence. Further, Griffith argues that "although vague allegations of Griffith's lack of notification to Spinks regarding the existing conditions of the plaintiff's property have been suggested as negligence, there was no 'charge' of negligence against upon which it was forced to defend itself."

In general, a "plaintiff litigating a civil action must bear his [or her] own attorney's fees and expenses absent a contractual or statutory basis for liability." Safeway Stores, supra note 4, 451 A.2d at 68 (D.C. 1982); see also Alyeska Pipeline Service Co. v. Wilderness Society , 421 U.S. 240, 246-55, 44 L. Ed. 2d 141, 95 S. Ct. 1612 (1975); Cahn v. Antioch University , 482 A.2d 120 (D.C. 1984); AFSCME v. Ball , 439 A.2d 514 (D.C. 1981). However, it is within the trial court's discretion to award attorneys' fees in an equitable action for indemnity. Safeway Stores, supra note 4, 451 A.2d at 70; see 42 C.J.S. Indemnity § 20 (1991). Indemnity has been relied on in such actions as a common law remedy that arises from an express or implied contract "which shifts a monetary loss from one compelled to pay it to another whom equity dictates should bear it instead." Myco, Inc. v. Super Concrete Co., Inc. , 565 A.2d 293, 297 (D.C. 1989) citing WILLIAM PROSSER, THE LAW OF TORTS, § 51 (4th Ed. 1971).

There is no requirement that indemnity be by express agreement; instead, it may be implied as "essentially an equitable remedy that 'arises without agreement, and by operation of law to prevent a result which is regarded as unjust or unsatisfactory.'" Id. at 297 (quoting W. PAGE KEETON, ET AL., PROSSER & KEETON ON THE LAW OF TORTS § 51, at 341 (5th ed. 1984)). Thus, an obligation to indemnify arises "where the equities of the case and the relationship of the parties support shifting responsibility from one party to another." Howard University v. Good Food Services , No. 90-196, slip op. at 10 (D.C., April 28, 1992) (citing Nat'l Health Labs. v. Ahmadi , 596 A.2d 555 (D.C. 1991)).

Entitlement to attorneys' fees as indemnity, however, has long been held to depend on whether a defendant defended against charges of his or her own negligence. See Westfield v. Mayo , 122 Mass. 100 ...

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