APPEAL FROM THE SUPERIOR COURT, STEPHEN F. EILPERIN, J. [715 A2d Page 140]
Before Steadman, Farrell, and Ruiz, Associate Judges.
The opinion of the court was delivered by: Ruiz, Associate Judge.
In this appeal, a general contractor asserts that it is entitled, by contract, to indemnification from its subcontractor even if the general contractor's negligence caused the damages for which indemnification is sought. The trial court entered a directed verdict against the claim for indemnification, explaining that "the contract does not unambiguously provide that [the subcontractor indemnitor] will indemnify [the general contractor indemnitee] for the contractor's own negligence." Based on controlling precedent, we conclude that the indemnification clause in the contract is not ambiguous on the broad scope of the indemnification provision, and therefore reverse and remand.
Dorothea McColl, an employee of John Canning & Company (Canning), sued N.P.P. Contractors, Inc. (N.P.P.) in a tort action for personal injuries and related damages she sustained while working on a renovation project in which Canning was a subcontractor. *fn1 N.P.P., the general contractor, in turn filed a third-party complaint against Canning for indemnification based upon a clause in their contract. The jury in the primary trial found that N.P.P.'s negligence in erecting, maintaining and/or inspecting the scaffolding was a proximate cause of McColl's injuries, and awarded McColl $413,000 in damages for her personal injuries and McColl's husband $5,000 in damages for loss of consortium.
The Contract and the Indemnification Clause
The indemnification clause at issue, labeled "Liability and Indemnity Insurance," reads in relevant part as follows:
The Subcontractor [Canning] shall indemnify and save harmless the Contractor [N.P.P.] and Owner from any and all claims and liabilities for property damage and personal injury, including death, arising out of or resulting from or in connection with the execution of the work.
When entering into the agreement, Canning altered and initialed six different clauses in the contract, which had been drafted by N.P.P. The Liability and Indemnity Insurance clause was not among them. *fn2
While the jury was deliberating in the primary case, the trial court entered a directed verdict for Canning stating:
I think that the contractual clause is ambiguous, and as such under the case law, including Rivers and Bryan versus HBE Corporation, *fn3 I am ruling in favor of Canning [715 A2d Page 141]
and Company because it does not — the contract does not unambiguously provide that Canning Company, the subcontractor, will indemnify the contract [sic] ...