Pitt v. Tyree Organization Ltd.

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

November 6, 2001 Session

JOHN PITT, II d/b/a PITT EXCAVATING v. TYREE ORGANIZATION

LIMITED and DOUG SUESS d/b/a DOUG SUESS CONCRETE

A Direct Appeal from the Chancery Court for Davidson County

No. 00-1766-I The Honorable Irvin H. Kilcrease, Jr., Chancellor

No. M2001-00115-COA-R3-CV - Filed February 28, 2002

This is a declaratory judgment action involving the interpretation and application of an

indemnification provision contained in a construction contract. Defendant, Doug Suess d/b/a Doug

Suess Concrete (hereinafter “Suess”), appeals from the final order of the trial court granting

summary judgment to both plaintiff, John Pitt, II d/b/a Pitt Excavating (hereinafter “Pitt”) and

defendant, Tyree Organization Limited (hereinafter “Tyree”). We reverse.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Reversed and

Remanded

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS ,

J. and HOLLY KIRBY LILLARD , J., joined.

Tom Corts, Nashville, For Appellant, Doug Suess d/b/a Doug Suess Concrete

Reid D. Leitner, Nashville, For Appellee, John Pitt, II, d/b/a Pitt Excavating

Robert Orr, Jr., Nashville, For Appellee, Tyree Organization Limited

OPINION

In May of 1999, the general contractor, Tyree, began the construction of an Exxon “Tiger

Market” gas station for the owner, Exxon Corporation. The construction site was located at 340

Harding Place, Nashville, Tennessee. In connection with the construction project, Pitt signed a sub-

contract presented by Tyree for performance of certain excavating work at the construction site.

Likewise, Suess signed a sub-contract presented by Tyree for performance of certain concrete work

at the construction site. Both sub-contracts presented by Tyree contain an identical indemnification

provision which provides:

12. Indemnification. Subcontractors agrees, (sic) to the fullest

extent permitted by law, to defend, indemnify and hold harmless, the

Contractor (including the affiliates, parents and subsidiaries, their

agents and employees) and other Contractors and Subcontractors and

all of their agents and employees and when required by the

Contractor, by the Contractor documents, the Owner, the Architects’

consultants, agents and employees from and against all claims,

lawsuits, damages, loss and expenses, including but not limited to

attorney fees, rising out of or resulting from the performance of the

Subcontractor provided that:

(a) Any such claim, lawsuit, damage, loss, or expense

is attributable to bodily injury, sickness, disease, or

death, or to injury to or destruction of tangible

property (other than the Subcontractor’s work itself)

including the loss of use resulting therefrom, to the

extent caused or alleged to be caused in whole or part

by any negligent act or omission of the Subcontractor

or anyone directly or indirectly employed by the

Subcontractor or for anyone for whose act the

Subcontractor may be liable, regardless of whether it

is caused in part by a party indemnified hereunder;

and

(b) Any such obligation shall not be construed to

negate, abridge, or otherwise reduce any other right or

obligation of indemnity which would otherwise exist

as to any party or person described in this agreement.

According to Pitt’s petition for declaratory judgment, on August 16, 1999, Suess suffered

personal injuries while on the construction site when an excavator operated by Pitt backed over him.

On February 1, 2000, Suess filed a personal injury complaint in the Circuit Court for Davidson

County, Tennessee against the following defendants: Jesse Brogdon, the alleged driver of the

excavator and an employee of Pitt; Pitt; Tyree and Exxon Corporation. In his complaint, Suess seeks

damages for the personal injuries he suffered as a result of the defendants’ alleged negligence and

recklessness. All of the defendants filed answers to Suess’s personal injury complaint alleging that

Suess caused his own injuries for which damages are claimed in the personal injury action. By letter

dated February 8, 2000, counsel for Tyree demanded that Pitt assume Tyree’s defense in Suess’s

personal injury action and indemnify Tyree in accordance with the indemnification provision above

which is contained in the sub-contract between Pitt and Tyree. Furthermore, by letter dated May 26,

2000, counsel for Pitt tendered the defense of Suess’s personal injury action to Suess and demanded

indemnification with respect to all claims in Suess’s personal injury lawsuit pursuant to the

indemnification provision above which is contained in the sub-contract between Suess and Tyree.

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The petition for declaratory judgment further provides in pertinent part:

22. Without admitting the formation or the enforceability of any

terms of the purported Tyree/Pitt subcontract, or that any work which

Pitt Excavating performed on August 16, 1999, was performed

pursuant to the purported Tyree/Pitt subcontract, Pitt Excavating

avers that an actual and justiciable controversy exists between Pitt

Excavating and Tyree with regard to the enforceability of the

purported Tyree/Pitt indemnification provision.

23. To the extent that the purported Tyree/Pitt indemnification

provision may be determined to be enforceable, Pitt Excavating avers

that an actual and justiciable controversy exists between Pitt

Excavating and Doug Suess Concrete with regard to the issue whether

Pitt Excavating is a third-party beneficiary indemnitee under the

Tyree/Suess indemnification provision by which Pitt Excavating is

entitled to a defense and indemnification in this action by Doug Suess

Concrete.

* * *

25. Pursuant to Tenn. Code Ann. § 29-14-101 et seq., an actual and

justiciable controversy exists regarding the purported Tyree/Pitt

indemnification provision in view of the (sic) Tyree’s demand to Pitt

Excavating for indemnification regarding the losses resulting from the

subject incident of August 16, 1999. Accordingly, Plaintiff

respectfully requests that the Court enter an order to declare as

follows:

A. That the purported Tyree/Pitt indemnification

provision is void and unenforceable because it

can be construed to purport to indemnify

Tyree for its sole negligence, in violation of

Tenn. Code Ann. § 62-6-123; and/or

B. That the purported Tyree/Pitt indemnification

provision is void and unenforceable because

the contractual language concerning

indemnification is unclear and equivocal.

* * *

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27. In the alternative, should the Court determine the purported

Tyree/Pitt indemnification provision to be enforceable, the Plaintiff

would alternatively aver that pursuant to Tenn. Code Ann. § 29-14-

101 et seq., an actual and justiciable controversy exists regarding the

Tyree/Suess indemnification provision in view of Pitt Excavating’s

demand to Suess Concrete for indemnification regarding the losses

resulting from the subject incident of August 16, 1999. Accordingly,

Plaintiff would respectfully request that the Court enter an order to

declare as follows:

A. That the Tyree/Suess indemnification

provision is enforceable;

B. That John Pitt, II d/b/a Pitt Excavating in (sic)

an intended third-party beneficiary indemnitee

of the Tyree/Suess indemnification provision;

and

C. That under the Tyree/Suess indemnification

provision, Doug Suess Concrete is required to

assume the defense and indemnify John Pitt,

II d/b/a Pitt Excavating with regard to the

claims against Pitt Excavating in the personal

injury lawsuit styled Doug Suess v. Jesse

Brogdon, John Pitt, II d/b/a Pitt Excavating

Company, Tyree Organization Limited, and

Exxon Corporation, Davidson County Circuit

Court No. 00C-288.

On July 6, 2000, Pitt moved for partial summary judgment in the declaratory judgment action

and on July 18, 2000, Suess filed an answer to Pitt’s petition for declaratory judgment which

provides in pertinent part:

AFFIRMATIVE DEFENSE

1. The Defendant Suess agrees with the position of Pitt Excavating

insofar as the indemnification provision which exists between Tyree

and Pitt and Tyree and Suess. Suess agrees that such indemnification

provision is unenforceable against Suess/Pitt for the reasons set forth

in paragraph 25 of the Petition.

2. The Defendant Suess denies that the indemnification provision in

question would require Suess to assume the defense and indemnify

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Pitt d/b/a Pitt Excavating even if the indemnification provision in

favor of Tyree is found to be enforceable.

Tyree’s answer to the petition for declaratory judgment denies the material allegations, and

includes a cross-claim against Suess which provides in pertinent part:

WHEREFORE, TYREE, having responded to the Petition for

Declaratory Judgment, filed against it by PITT, and having asserted

its own Petition against SUESS, prays that the Court, following

presentation of evidence and argument of counsel, enter an Order

determining and holding:

(a) That the subcontract between TYREE and PITT and attached as

Exhibit 1 to the Petition was and is valid and enforceable as of the

date of the injury to DOUG SUESS;

(b) That the indemnity provisions of said subcontract do not

contravene and are not voided or otherwise affected by T.C.A. § 62-

6-123;

(c) That the language and wording of the indemnity provisions of said

subcontract are not unclear, ambiguous, or equivocal or subject to

more than one meaning or interpretation; and,

(d) That PITT must come in and defend and hold TYREE harmless

from any verdict or judgment, including attorneys fees and expenses,

which may be entered in the underlying tort litigation brought by

DOUG SUESS and arising out of his injuries of August 16, 1998.

TYREE, further, prays that the Court enter an Order determining and

holding:

(a) That the subcontract between TYREE and SUESS and attached as

Exhibit A to the Cross-Petition was and is valid and enforceable as of

the date of the injury to DOUG SUESS;

(b) That the indemnity provisions of said subcontract do not

contravene and are not voided or otherwise affected by T.C.A. § 62-

6-123;

(c) That the language and wording of the indemnity provisions of said

subcontract are not unclear, ambiguous, or equivocal or subject to

more than one meaning or interpretation; and,

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(d) That SUESS must come in and defend and hold TYREE harmless

from any verdict or judgment, including attorneys fees and expenses,

which may be entered in the underlying tort litigation brought by

DOUG SUESS and arising out of his injuries of August 16, 1998.

Suess filed an answer to Tyree’s cross-claim on July 27, 2000, which provides in pertinent

part:

7. Cross-Claimant Suess specifically alleges that the indemnity

agreement in question does not require Suess to defend, hold

harmless and indemnify Tyree. The agreement did not contemplate

that the injury would be to Doug Suess. Further, Suess denies that the

claim arose out of any negligence or fault on the part of Suess.

Further, Suess alleges that the indemnity provision is void or voidable

as set forth by Pitt in the original Petition.

On August 14, 2000, Tyree moved for summary judgment arguing that Tenn. Code Ann. §

62-6-123 does not apply to the indemnity provision and that it is valid and enforceable as against

Pitt. On September 12, 2000, Pitt filed a second motion for summary judgment which provides that

Suess must indemnify and hold harmless Tyree with regard to his own claim; that Suess has waived

any right of action against Tyree; that Suess must indemnify and hold harmless Pitt as an intended

third-party beneficiary indemnitee; and that Suess has waived any right of action against Pitt. On

October 3, 2000, Tyree filed its second motion for summary judgment, joining in with Pitt’s second

motion for summary judgment against Suess, arguing that “under the subcontract entered into

between TYREE and SUESS, SUESS contractually agreed to defend, indemnify, and hold TYREE

harmless with regard to the claims of SUESS arising out of personal injuries he suffered in an

accident which occurred on August 16, 1999.”

By order dated October 25, 2000, the trial court ruled on the cross-motions for summary

judgment pertaining only to Pitt and Tyree. The order provides in pertinent part:

The Court, having reviewed the Indemnification Agreement

in detail, having considered the claims of the parties in their briefs

and in the cases cited, and having considered arguments of counsel,

the Court is of the opinion that Paragraph 12 of the contract, the

Indemnification Agreement, does not violate T.C.A. § 62-6-123.

Furthermore, the Court is of the opinion that the Indemnification

Agreement is not ambiguous. Having found that the Indemnification

Agreement is not ambiguous, the Court need not construe the

contract. Rather, it is the duty of the Court to order that the contract

be enforced as written.

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The Court being of the opinion that this Indemnification

paragraph is valid and enforceable as to the parties involved,

accordingly, the Motion for Summary Judgment of Pitt is denied and

the Cross-Motion for Summary Judgment of Tyree is granted.

WHEREFORE, it is ORDERED, ADJUDGED, AND

DECREED that Pitt will indemnify Tyree for all damages with

respect to the underlying tort action in the Circuit Court.

Suess’s response to the summary judgment motions filed against him by both Pitt and Tyree

provides in pertinent part:

Doug Suess d/b/a Doug Suess Concrete (hereinafter referred

to as “Suess”) states that he does not dispute any of the facts set forth

in either Pitt’s First Motion for Summary Judgment or Pitt’s Second

Motion for Summary Judgment. Based upon these undisputed facts,

the Court should conclude that there is no obligation by Suess to

indemnify either Pitt or Tyree.

This Court has already held that the indemnity provision in

question does require Pitt to indemnify and hold Tyree harmless for

the claim made and Complaint filed by Suess against Pitt, Tyree and

others. This is a reasonable and logical interpretation of such a

provision.

The issue before the Court now is whether Suess, the injured

party, who brings the claim and files the lawsuit against Pitt, Tyree

and others should also have to indemnify and hold harmless Tyree

and/or Pitt. The answer is unequivocally “no” for several very logical

reasons.

* * *

A reasonable interpretation of this contract and of this

particular provision requires a subcontractor to indemnify the general

contractor if the subcontractor’s fault results in a bodily injury to

someone other that [sic] subcontractor and a claim is made or a

lawsuit filed against that subcontractor or general contractor in which

damages are being sought because of that fault. Again, no such

“claim” or “lawsuit” has been filed against Suess seeking damages for

any bodily injury. Thus, there is clearly no “claim” or “lawsuit”

which triggers any obligation on behalf of Suess to indemnify anyone.

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By final order of declaratory judgment dated November 20, 2000, the trial court granted the

summary judgment motions of both Tyree and Pitt. The final order provides:

This cause came to be heard on November 3, 2000, upon the

second summary judgment motion of the Plaintiff, John Pitt, II d/b/a

Pitt Excavating Company, and the second summary judgment motion

of the Defendant, Tyree Organization Limited; and it appearing to the

Court that the indemnification and hold harmless provision contained

in Section 12 of the contract between Tyree Organization Limited and

the Defendant, Doug Suess d/b/a Suess Concrete, is clear and

unambiguous; and in consideration of the pleadings, exhibits, and

evidence presented to the Court with regard to said motions, the

arguments of counsel, and the entire record in this case, the Court

finds the second summary judgment motion of Pitt Excavating and

the second summary judgment motion of Tyree Organization to be

well taken;

It is therefore ORDERED, ADJUDGED, AND DECREED

that the second summary judgment motion of John Pitt, II d/b/a Pitt

Excavating Company be and hereby is granted;

It is therefore, ORDERED, ADJUDGED, AND DECREED

that the second summary judgment motion of Tyree Organization

Limited be and hereby is granted;

It is further DECLARED and ORDERED that the

indemnification provision contained in Section 12 of the subcontract

between Tyree Organization Limited and Doug Suess d/b/a Suess

Concrete is valid and enforceable.

It is further DECLARED and ORDERED that under the

indemnification provision contained in Section 12 of the subcontract

between Tyree Organization Limited and Doug Suess d/b/a Suess

Concrete, Doug Suess d/b/a Suess Concrete contractually agreed to

defend, indemnify, and hold harmless the Tyree Organization

Limited, and all of its contractors and subcontractors, as well as their

representatives and employees, with regard to any claims, actions,

and/or lawsuits of Doug Suess d/b/a Suess Concrete for personal

injuries in connection with the subject incident which occurred on

August 16, 1999;

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It is further DECLARED and ORDERED that under the

indemnification provision contained in Section 12 of the subcontract

between Tyree Organization Limited and Doug Suess d/b/a Suess

Concrete, Doug Suess d/b/a Suess Concrete is obligated to indemnify

Tyree Organization Limited, as well (sic) its representatives and

employees, with regard to all litigation concerning the subject

incident which occurred on August 16, 1999, in which Doug Suess

was injured;

It is further DECLARED and ORDERED that Doug Suess

d/b/a Suess Concrete is liable for, and is hereby ordered to pay all

attorneys’ fees, expenses, and costs incurred or which may be

incurred by Tyree Organization Limited, as well (sic) its

representatives and employees, with regard to litigation concerning

the subject incident which occurred on August 16, 1999, in which

Doug Suess was injured;

It is further DECLARED and ORDERED that Doug Suess

d/b/a Suess Concrete has waived any right of action against, and has

released Tyree Organization Limited, as well (sic) its representatives

and employees, from all claims, actions, and/or lawsuits arising from

or in connection with the subject injury of August 16, 1999, in which

Doug Suess was injured;

It is further DECLARED and ORDERED that under the

indemnification provision contained in Section 12 of the subcontract

between Tyree Organization Limited and Doug Suess d/b/a Suess

Concrete, Doug Suess d/b/a Suess Concrete is obligated to indemnify

John Pitt, II d/b/a Pitt Excavating Company, as well (sic) his

representatives and employees, including, but not limited to, Jesse

Brogdon, with regard to all litigation concerning the subject incident

which occurred on August 16, 1999, in which Doug Suess was

injured;

It is further DECLARED and ORDERED that Doug Suess

d/b/a Suess Concrete is liable for, and is hereby ordered to pay, all

attorneys’ fees, expenses, and costs incurred or which may be

incurred by John Pitt, II d/b/a Pitt Excavating Company, as well (sic)

his representatives and employees, including, but not limited to, Jesse

Brogdon, with regard to litigation concerning the subject incident

which occurred on August 16, 1999, in which Doug Suess was

injured.

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It is further DECLARED and ORDERED that Doug Suess

d/b/a Suess Concrete has waived any right of action against, and has

released John Pitt, II d/b/a Pitt Excavating Company, as well (sic) his

representatives and employees, including, but not limited to, Jesse

Brogdon, from all claims, actions, and/or lawsuits arising from or in

connection with the subject injury of August 16, 1999, in which Doug

Suess was injured;

It is further DECLARED and ORDERED that all issues

joined in this action have now been adjudicated;

It is further ORDERED that the court costs be taxed against

the Defendant, Doug Suess d/b/a Suess Concrete, for which execution

may issue if necessary.

On December 4, 2000, Suess filed a motion to alter or amend the final order of declaratory

judgment which was denied by order dated December 29, 2000. Suess appeals and presents the

following two (2) issues for review as stated in his brief:

1. Whether or not indemnity language contained in a construction

contract requires Doug Suess, an individual sole proprietor, who was

injured on the job, to indemnify Tyree, the general contractor, and

Pitt, a fellow subcontractor for all expenses and liability resulting

from Suess bringing a claim for his own bodily injury against Tyree

and Pitt.

2. Whether or not by signing the construction contract, Doug Suess

waived his right to bring an action for negligence or recklessness

against Tyree, the general contractor, and Pitt, a fellow sub-

contractor.

The appellee, Pitt, raises the following five (5) issues for review as stated in Pitt’s brief:

I. Whether this court should consider the issues whether the

indemnification provision in the Tyree/Suess Concrete subcontract is

unenforceable under Tenn. Code Ann. § 62-6-123 or for ambiguity

because this position on appeal is inconsistent with the position which

Suess Concrete took before the trial court.

II. Whether Suess Concrete’s express agreement to “defend” and

“indemnify” Tyree and Pitt Excavating with regard to “all” claims for

personal injury includes the claims of Doug Suess.

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III. Whether Suess Concrete’s express agreement to “hold harmless”

Tyree and Pitt Excavating with regard to “all” claims for personal

injury includes the claims of Doug Suess.

IV. Whether Suess Concrete failed to establish any evidence in the

record to create any genuine issue of material fact regarding alleged

“gross” or “willful” negligence of any defendant in the personal

injury action.

V. In the event that the final order regarding the second summary

judgment motion is reversed, whether the order regarding Tyree’s

first summary judgment also should be reversed.

The appellee, Tyree, also raises issues which include, in essence, the same issues raised by

Suess and Pitt. Therefore, we will not consider Tyree’s issues separately.

The resolution of the issues in this case is solely dependent on the construction of the

indemnity provision in the contract between Suess and Tyree. The interpretation of a written

contract is a matter of law and not of fact. See Rainey v. Stansell, 836 S.W.2d 117 (Tenn. Ct. App.

1992). A motion for summary judgment should be granted when the movant demonstrates that there

are no genuine issues of material fact, and that the moving party is entitled to a judgment as a matter

of law. Tenn. R. Civ. P. 56.04. Summary judgment is a preferred vehicle for disposing of purely

legal issues. See Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993); Bellamy v. Federal Express Corp.,

749 S.W.2d 31 (Tenn. 1988). Since the construction of a written contract involves legal issues, a

contract in a construction case, such as this one, is particularly suited to disposition by summary

judgment. Browder v. Logistics Management, Inc., C. A. No. 02A01-9502-CH-00016, 1996 Tenn.

App. LEXIS 284 (Tenn. Ct. App. May 15, 1996); see also Rainey v. Stansell, 836 S.W.2d at 119.

Since only questions of law are involved, there is no presumption of correctness regarding a trial

court’s grant of summary judgment. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). Therefore,

our review of the trial court’s grant of summary judgment is de novo on the record before this Court.

Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

The cardinal rule in the construction of contracts is to ascertain the intent of the parties.

Bradson Mercantile, Inc. v. Crabtree, 1 S.W.3d 648, 652 (Tenn. Ct. App. 1999)(citing West v.

Laminite Plastics Mfg. Co., 674 S.W.2d 310 (Tenn. Ct. App. 1984)). If the contract is plain and

unambiguous, the meaning thereof is a question of law, and it is the Court's function to interpret the

contract as written according to its plain terms. Id. (citing Petty v. Sloan, 277 S.W.2d 355 (Tenn.

1955)). The language used in a contract must be taken and understood in its plain, ordinary, and

popular sense. Id. (citing Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d

578 (Tenn. 1975)). In construing contracts, the words expressing the parties' intentions should be

given the usual, natural, and ordinary meaning. Id. (citing Ballard v. North American Life & Cas.

Co., 667 S.W.2d 79 (Tenn. Ct. App. 1983)). If the language of a written instrument is unambiguous,

the Court must interpret it as written rather than according to the unexpressed intention of one of the

parties. Id. (citing Sutton v. First Nat. Bank of Crossville, 620 S.W.2d 526 (Tenn. Ct. App. 1981)).

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Courts cannot make contracts for parties but can only enforce the contract which the parties

themselves have made. Id. (citing McKee v. Continental Ins. Co., 234 S.W.2d 830 (Tenn. 1951)).

There is no general prohibition against indemnification provisions in contracts. See Brown

Bros., Inc. v. Metro. Govt. of Nashville, 877 S.W.2d 745, 749 (Tenn. Ct. App. 1993). However, the

Legislature has indicated by specific statutes that in certain areas of commercial activity, indemnity

or hold-harmless provisions will be invalid. See Golden Constr., Inc./CFW Constr. Co., Inc. v. E.

Luke Greene Caulking Contractors, Inc., 83-286 CA No. 54, 1987 WL 18061, at *3 (Tenn. Ct.

App. Oct. 9, 1987)(citing Affiliated Professional Services v. South Central Bell, 606 S.W.2d 671

(Tenn. 1980)). These statutes include Tenn. Code Ann. § 62-6-123 (1997) which provides that an

indemnity agreement in a construction contract that purports to hold harmless the promisee from

liability for damages caused by 'the sole negligence of the promisee' is void as against public policy.

See id.

We will now address Suess’s issues together.

Suess argues that the indemnity provision in question is vague, ambiguous, against public

policy and is not applicable to the factual situation before this Court. It is not against public policy

to contract to be indemnified against one’s own negligence, but such a provision in indemnification

contracts must be expressly clear and in unequivocal terms. See Kroger Co. v. Giem, 387 S.W.2d

620 (1964); Olin Corp. v. Yeargen, Inc., 146 F.3d 398 (6th Cir. 1998).

A correct paraphrasing of the indemnity clause is as follows: Subcontractor (Suess) agrees

to indemnify contractor (Tyree) and subcontractor (Pitt) and their employees from any and all claims

“rising out of or resulting from the performance of the subcontractor” if any claim is for bodily

injury or property damage caused or alleged to be caused by the negligent act or omission of the

subcontractor or anyone for whose act the subcontractor may be liable.

Pitt and Tyree assert, and the trial court agreed, that Suess’s agreement to indemnify them

includes indemnity for claims by Suess against them, primarily because Suess agrees to indemnify

against “all” claims, which they argue includes a claim made by Suess against them. They point to

the dictionary definition of “all” to which we readily agree. However, to properly construe an

agreement, we are not allowed to take words in isolation, but must construe the instrument as a

whole. See APAC-Tennessee, Inc. v. J. M. Humphries Const. Co., 732 S.W.2d 601, 604 (Tenn.

Ct. App. 1986)(citing Rodgers v. Southern Newspapers, Inc., 379 S.W.2d 797, 799 (Tenn. 1964)).

It is clear from the language of the indemnity agreement that any indemnity provided to Tyree and

Pitt must rise out of or result from the “performance” by Suess or his employees in a negligent

manner. Undoubtedly, “performance,” as used in this provision of the contract, refers to doing the

work required of Suess in furtherance of the contract. “All” claims is specifically limited in the

contract to claims (1) rising out of or resulting from the subcontractor’s performance, and (2) caused

or allegedly caused by the subcontractor’s negligence or his employee’s negligence, or “for anyone

for whose act [Suess] may be liable.” In this context, rising out of or resulting from refers to two

distinct occurrences. “Rising out of” refers to some incident giving rise to a claim related to and

actually caused by a performance of the work involved. “Resulting from” refers to an incident that

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occurs involving the work that has already been performed. While we have found no Tennessee case

directly discussing these points, the Superior Court of New Jersey considered a similar provision and

provides some assistance with the definition. In Leitao v. Damon G. Douglas Co., 693 A.2d 1209

(N.J. Super. Ct. App. Div. 1997), the Court, in construing a similar indemnity provision, stated in

pertinent part:

[W]e have construed the words “arising out of” in accordance with

their common and ordinary meaning as referring to a claim “growing

out of” or having its “origin in” the subject matter of the

subcontractor’s work duties. (citations omitted). Although the words

“resulting from” perhaps imply some causal relationship between the

subcontractor’s work and the claim, we do not interpret this clause as

requiring fault on the subcontractor’s part as a prerequisite to

indemnification. Instead, we view these words as requiring only a

substantial nexus between the claim and the subject matter of the

subcontractor’s work duties. (citations omitted).

Id. at 1212.

The application of indemnity is limited to a claim that is caused or allegedly caused by Suess

or anyone for whose act Suess may be liable. It is implicit from this provision of the contract that

only claims made against Suess, Pitt or Tyree are included in the indemnity provision. We must

respectfully disagree with the trial court’s holding that a claim by Suess against Pitt and Tyree would

be included in the indemnity provision. The use of the language “alleged to be caused” by Suess’s

negligence indicates that it is to be some claim made against Suess, Pitt, or Tyree because of some

act on the part of Suess.

We find nothing ambiguous about the language of the indemnity agreement. Simply stated,

it means that if, because of Suess’s negligent performance of his obligation under the contract a

claim is made against Tyree or Pitt, Suess must indemnify those parties. There is certainly nothing

in the language of this indemnity agreement that clearly and unambiguously indemnifies Tyree and

Pitt for their own negligence.

In Pitt’s fifth issue Pitt argues that if the final order granting summary judgment to both Pitt

and Tyree is reversed, then the previous order granting summary judgment to Tyree against Pitt

should also be reversed. Pitt’s position is that Tyree argued its motion for summary judgment less

than thirty-seven (37) days after service of the motion in violation of Rule 26.03 of the Davidson

County Local Rules of Court. It appears that Pitt waived this issue by failing to raise an objection

at the oral argument. All other issues are pretermitted.

Accordingly, the final order of the trial court granting summary judgment to both Pitt and

Tyree against Suess is reversed, and this case is remanded to the trial court for entry of a declaratory

judgment consistent with this Opinion. Costs of appeal are assessed against the appellees, John Pitt,

II, d/b/a Pitt Excavating, and Tyree Organization Limited.

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__________________________________________

W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.

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