SCHULTZ v. LOWE'S HOME CENTERS, LLC.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

BRENDA SCHULTZ, :

Plaintiff, : Hon. Joseph H. Rodriguez

v. :

Civil Action No. 17-87

LOWE’S COMPANIES, LLC, et al, :

Defendants. : OPINION

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.

Background

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

1 Sungevity argues that because it has been granted a discharge in bankruptcy, Lowe’s is

precluded from seeking enforcement of the contract because Lowe’s failed to seek an/or obtain

relief from the Bankruptcy Court. Lowe’s claim is limited by the confines of the Sungevity policy

amount. Article XIV, the Agreement compels Sungevity to provide insurance coverage for

Lowe’s with limits of not less than $2,000,000 per occurrence and a general aggregate of not

less than $10,000,000. Given the fact that the claims here relate to indemnification and is

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.

restricted to the limitations of the policy amounts available to Sungevity, the bankruptcy does

not preclude Lowe’s claims. See 11 U.S.C. § 524(e) (“Except as provided in subsection (a)(3) of

this section, discharge of a debt of the debtor does not affect the liability of any other entity on,

or the property of any other entity for, such debt.”); In re Cont'l Airlines, 203 F.3d 203, 211 (3d

Cir. 2000) (“Section 524(e) of the Bankruptcy Code makes clear that the bankruptcy discharge

of a debtor, by itself, does not operate to relieve non-debtors of their liabilities.”) (citations

omitted).

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 . . . .’” Trap Rock

Indus., Inc. v. Local 825, Int’l Union of Operating Eng’rs, 982 F.2d 884,

890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d

Cir. 1991)). Indeed,

the plain language of Rule 56(c) mandates the entry of

summary judgment, after adequate time for discovery and

upon motion, against a party who fails to make a showing

sufficient to establish the existence of an element essential

to that party’s case, and on which that party will bear the

burden of proof at trial.

Celotex, 477 U.S. at 322. That is, the movant can support the assertion that

a fact cannot be genuinely disputed by showing that “an adverse party

cannot produce admissible evidence to support the [alleged dispute of]

fact.” Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2).

In deciding the merits of a party’s motion for summary judgment, the

court’s role is not to evaluate the evidence and decide the truth of the

matter, but to determine whether there is a genuine issue for trial.

Anderson, 477 U.S. at 249. Credibility determinations are the province of

the factfinder. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358,

1363 (3d Cir. 1992).

Analysis

Summary judgment is granted in favor of Lowe’s because Sungevity is

compelled by the unambiguous terms of the Agreement to indemnify

Lowe’s in the event of claims, such as those Plaintiff alleges in the case in

chief. The Agreement indicates in unambiguous terms that indemnification

of Lowe’s must occur even if an injury or loss was in part attributable to

conduct by Lowe’s.

The specific language of the Agreement states that indemnity attaches

“regardless of whether or not such Claim is caused, or alleged to have been

caused, in part by a Lowe’s indemnitee…”. Agreement, 12.1. Under New

Jersey law, it is clearly established that “a contract will not be construed to

indemnify the indemnitee against losses resulting from its own negligence

unless such an intention is expressed in unequivocal terms.” Ramos v.

Browning Ferris Indus. of S. Jersey, Inc., 103 N.J. 177, 191, 510 A.2d 1152

(1986); Azurak v. Corporate Prop. Investors, 175 N.J. 110, 112–13, 814

A.2d 600 (2003) (reaffirming Ramos and Mantilla v. NC Mall Assocs., 167

N.J. 262, 770 A.2d 1144 (2001)). The Court finds that the indemnification

language in the Agreement is clear, unambiguous, and similar to language

triggering indemnification in other cases. See Leitao v. Damon G. Douglas

Co., 301 N.J. Super. 187 (N.J. App Div. 1997).

Under the indemnification provision, even if there is a finding that a

Lowe’s Indemnitee is negligent, indemnification attaches. See Agreement,

12.1. New Jersey law permits a party to indemnify against losses resulting

from its own negligence if the agreement expresses as much “in

unequivocal terms[.]” Ramos, 103 N.J. at 191, 510 A.2d 1152. Because the

provision here includes language which permits indemnification even in the

face of any negligence committed by Lowe’s, the indemnification provision

is enforceable against Sungevity.

Conclusion

For the reasons expressed herein, Lowe’s motion for summary

judgment seeking to compel indemnification by Sungevity is granted

because the express language of the Agreement expressly permits

indemnification even if Lowe’s is found negligent.

An appropriate Order shall issue.

Dated: June 10, 2019

s/ Joseph H. Rodriguez

Hon. Joseph H. Rodriguez,

United States District Court