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07/15/93 RIVERS & BRYAN v. HBE CORPORATION

July 15, 1993

RIVERS & BRYAN, INC., APPELLANT
v.
HBE CORPORATION, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Shellie F. Bowers, Trial Judge)

Second Rehearing June 18, 1993; Released for Publication September 3, 1993

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

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge: This is an appeal from an order of the trial court entering judgment in favor of appellee, HBE Corporation ("HBE"), in the amount of $300,000 against appellant, Rivers & Bryan, Inc. ("Rivers & Bryan"), *fn1 on HBE's third-party complaint for indemnification arising out of a contractual agreement. Rivers & Bryan contends that the trial court erroneously ruled that the contract between the parties provided that Rivers & Bryan was required to indemnify HBE for HBE's own wrongful actions. We agree that the trial court misapplied controlling principles of law relating to the interpretation of such indemnity agreements and accordingly reverse.

I.

On December 23, 1986, Broanagene Edwin Conner, an employee of Rivers & Bryan, fell through a hole in the roof of a building on which he was performing masonry work. He died as the result of the twenty-six foot fall to the ground below. Rivers & Bryan had been hired as the masonry subcontractor by HBE, the general contractor of the project.

After the accident, both HBE and Rivers & Bryan were cited by the Occupational Safety and Health Administration ("OSHA") for violations of OSHA safety regulations. *fn2 HBE was cited for three violations, Rivers & Bryan for four. One violation was common to both. *fn3 Neither Rivers & Bryan nor HBE contested the citations.

Doris Conner, the decedent's mother and personal representative of his estate, filed a survival and wrongful death action against HBE, Janco Enterprises ("Janco") (the roofing subcontractor who one week previously had created the hole through which decedent fell), and Transit Employees Federal Credit Union (the "Credit Union") (the owner of the property), *fn4 alleging various acts of negligence as well as a violation of OSHA, 29 C.F.R. § 1926.500(b)(1). See note 3, supra. As refined in her pretrial statement, Ms. Conner set forth her claims as follows:

II. Liability

The Plaintiff contends that the decedent's death was caused by the negligence of the Defendants in the following respects:

1. Janco Enterprise, Inc.

(a) in creating the hole in the roof of the building through which decedent fell to his death and failing to provide proper warnings and guarding with respect to the same;

(b) in violating the safety standards set forth in 29 C.F.R. ...


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