# SCHULTZ v. LOWE'S HOME CENTERS, LLC.

> District Court, D. New Jersey · June 10, 2019

URL: https://www.frixlaw.com/law-library/cases/10266146

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** June 10, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10266146

## How later opinions describe it (automated extraction)

- reaffirming Ramos and Mantilla v. NC Mall Assocs., 167 N.J. 262, 770 A.2d 1144 (2001)

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10266146. Public record. Not legal advice.