Bracken, T. v. Burchick Construction Co.

J-A28011-13

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TONI BRACKEN, ADMINISTRATRIX OF IN THE SUPERIOR COURT OF

THE ESTATE OF WILLIAM BRACKEN, PENNSYLVANIA

DECEASED

v.

BURCHICK CONSTRUCTION COMPANY,

INC., PATENT CONSTRUCTION COMPANY

AND HARSCO CORPORATION

APPEAL OF BURCHICK CONSTRUCTION

COMPANY, INC.

No. 1432 WDA 2012

Appeal from the Judgment Entered September 14, 2012

In the Court of Common Pleas of Allegheny County

Civil Division at No(s): GD-09-015529

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OLSON, J.

MEMORANDUM BY PANELLA, J. FILED OCTOBER 10, 2014

Burchick Construction Company, Inc. (“Burchick”) appeals from the

judgment entered September 14, 2012, in the Court of Common Pleas of

Allegheny County. At issue is whether Kusler Masonry, Inc. (“Kusler”)

agreed to indemnify Burchick for liability stemming from Burchick’s

negligence. If not, we must next decide whether Kusler agreed to indemnify

Burchick for liability stemming from Kusler’s own negligence.

Burchick was the general contractor for a construction project known

as 135 Jamison Lane. See Trial Court Opinion, 6/12/12, at 1. Burchick

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entered into a subcontract with Kusler, wherein Kusler was responsible for

the project’s associated masonry work. See id. at 1. Kusler employed the

decedent, William Bracken. See id. at 2. Toni Bracken is Mr. Bracken’s

spouse and administratrix of his estate. See id. While performing work on

the project, Mr. Bracken was killed in a work site accident. See id. As a

result, Mrs. Bracken filed a civil action against Burchick seeking damages

pursuant to the Pennsylvania Wrongful Death and Survival Acts. See id.

Subsequently, Burchick filed a complaint to join Kusler as an additional

defendant asserting two causes of action: contractual indemnification and

breach of contract. See Complaint to Join Additional Defendant Kusler

Masonry, Inc., 1/8/10. The only claim at issue in the instant appeal is the

contractual indemnification claim. With respect to this claim, Burchick

alleged that the underlying liability was caused, in whole or in part, by

Kusler’s negligent acts or omissions. See id. at ¶¶ 17-18, 21.

Kusler filed preliminary objections to the additional defendant

complaint, claiming immunity from third party indemnity claims pursuant to

the Workers Compensation Act (“the Act”). See Kusler’s Preliminary

Objections, 2/9/10, at ¶¶ 5-10. The trial court sustained Kusler’s

preliminary objections on July 15, 2010, thus dismissing the additional

defendant complaint. See Trial Court Order, 7/15/10.

Thereafter, Burchick filed a motion for leave to file an amended

complaint to join Kusler based on an alleged materially changed

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circumstance in litigation.1 See Motion for Leave to File Amended Complaint

to Join Kusler Masonry, Inc., 2/28/12. Burchick again claimed that the

terms of the subcontract agreement required Kusler to indemnify Burchick.

See id. at ¶ 13. Kusler opposed the motion, citing the immunity provided by

the Act. See Response in Opposition to Defendant’s Motion for Leave to File

Amended Complaint, 3/5/12. The trial court sided with Kusler and denied

the motion. See Trial Court Order, 6/13/12.

The matter proceeded to trial in August 2012; however, Burchick and

the Brackens settled before a verdict was reached. Burchick filed a motion

for post-trial relief asking the trial court to vacate its July 15, 2010, and June

13, 2012, orders so that Burchick could file an amended complaint to join

Kusler. See Burchick’s Motion for Post-Trial Relief, 9/4/14. The trial court

denied this request. See Trial Court Order, 9/7/12. This timely appeal

followed.

Burchick raises the following issue for our review:

Whether the lower court should have granted [Burchick’s]

request to join the [Appellee’s] employer, [Kusler], as an

additional defendant in this matter where the subcontractor

agreement between [Burchick] and Kusler requires Kusler to

indemnify Burchick for claims asserted in the tort action by

[Appellee?]

Burchick’s Brief at 5.

____________________________________________

1

This alleged circumstances involve Kusler’s alleged obligation to provide

additional insurance to Burchick.

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Since this appeal stems from the grant of preliminary objections, we

are guided by the following standard:

In determining whether the trial court properly sustained

preliminary objections, the appellate court must examine the

averments in the complaint, together with the documents and

exhibits attached thereto, in order to evaluate the sufficiency of

the facts averred. The impetus of our inquiry is to determine the

legal sufficiency of the complaint and whether the pleading

would permit recovery if ultimately proven. This Court will

reverse the trial court's decision regarding preliminary objections

only where there has been an error of law or abuse of discretion.

When sustaining the trial court's ruling will result in the denial of

[a] claim or a dismissal of suit, preliminary objections will be

sustained only where the case is free and clear of doubt.

Floors, Inc. v. Atlig, 963 A.2d 912, 915 (Pa. Super. 2009) (citation

omitted).

The parties’ relationship was governed by a subcontract agreement

dated June 27, 2007. Relying upon Articles IV and VI of the agreement,

Burchick claims that it imposes indemnification liability on Kusler for

Burchick’s negligence. Alternatively, Burchick suggests Kusler agreed to

indemnify Burchick to the extent the instant liability stems from Kusler’s own

negligence. Before addressing these claims, we must first discuss the Act’s

immunity provision as well as relevant case law.

The Act requires an employer to purchase workers’ compensation

insurance in the event of workplace injuries. Participating employers are

protected from further liability since the Act makes these insurance benefits

the sole and exclusive means of recovery against an employer for workplace

injuries. See 77 PA.CONS.STAT.ANN. § 481(a). However, the Act allows an

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employer to waive this immunity by entering into an indemnity contract with

a third party wherein the employer agrees to assume such liability that

occurs to the employer’s employees. The relevant provision provides:

In the event injury or death to an employe is caused by a third

party, then such employe, his legal representative, husband or

wife, parents, dependents, next of kin, and anyone otherwise

entitled to receive damages by reason thereof, may bring their

action at law against such third party, but the employer…shall

not be liable to a third party for damages, contribution, or

indemnity in any action at law, or otherwise, unless liability for

such damages, contributions or indemnity shall be expressly

provided for in a written contract entered into by the party

alleged to be liable prior to the date of the occurrence which

gave rise to the action.

77 PA. CONS. STAT. ANN. § 481(b) (emphasis added).

The practical effect of this provision is to prevent the involuntary

joinder of an employer in an action involving injury or death to its employee

unless the employer waives such right by agreeing with a third party to

assume indemnity liability via contract. While the Act permits

indemnification contracts in this context, these contracts “are not favored in

the law and every intendment must be construed against the party seeking

protection from liability or indemnification from the employer.” Snare v.

Ebensburg Power Co., 637 A.2d 296, 298 (Pa. Super. 1993) (citations

omitted). In order to waive immunity provided by the Act, the parties must

use clear and unequivocal language providing the employer/indemnitor will

indemnify a third party against claims by employees of the indemnitor. See

id. (citing Bester v. Essex Crane Rental Corp., 619 A.2d 304 (Pa. Super.

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1993)). Thus, “general indemnity language such as ‘any or all’ or ‘any

nature whatsoever’ is insufficient.” Bester, 619 A.2d at 307 (citation

omitted). In addition, when faced with a claim that an agreement requires

the indemnitor to indemnify and indemnitee for liability arising from the

indmenitee’s own negligence, such intent must also be evident from the

express language of the contract. See id. at 308-309 (“[C]ontracting

parties must specifically use language which demonstrates that a named

employer agrees to indemnify a named third party from liability for acts of

that third party’s own negligence which result in harm to the employees of

the named employer.”).

The requirement of clear and unequivocal contractual language to

impose indemnification liability based on the negligent acts of an indemnitee

is a long-established policy. See Perry v. Payne, 66 A. 553 (Pa. 1907);

Ruzzi v. Butler Petroleum Co., 588 A.2d 1 (Pa. 1991). It is necessary

because “[t]he liability on such indemnity is so hazardous, and the character

of the indemnity so unusual and extraordinary, that there can be no

presumption that the indemnitor intended to assume the responsibility

unless the contract puts it beyond doubt by express stipulation.” Perry, 66

A. at 557. This policy sometimes requires a reviewing court to disregard the

plain meaning of a clause, as discussed by our Court in Deskiewicz v.

Zenith Radio Corp.:

A fundamental rule of construction in the law of contracts states

that words, phrases and clauses will be given their plain and

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ordinary expressed meaning. If this is so, then this particular

area of law, indemnification for damages or injuries arising from

negligent acts, could be thought of as an exception to the

general rule. If literal effect was given to these clauses then

indemnification would be enforced. Yet due to policy and

practical considerations decisions have been handed down

indicating that such generally worded indemnification clauses will

not be construed to mean that the indemnitor will indemnify the

indemnitee for liability resulting from the indemnitee's own

negligence.

561 A.2d 33, 35 (Pa. Super. 1989) (citation omitted).

Lastly, while the case law requires clear an unequivocal language to

establish both a waiver of immunity provided by the Act, as well as an intent

to indemnify for liability stemming from an indemnitee’s negligence, “if the

indemnification agreement is clear and includes indemnification in the event

of either the indemnitee’s or the employer’s own negligence, its

enforceability does not require that the employer, in addition, expressly and

in haec verba waive the immunity provided by [the Act].” Bester, 619 A.2d

at 307 (citation omitted).

With these principles in mind, we turn our attention to the relevant

contractual language at issue:

ARTICLE IV: Subcontractor’s Liability

***

c. If any person (including employees of [Kusler]) suffers injury

or death or property is damaged, lost or destroyed as a result, in

whole or in part, of negligence (or other act for which there is

legal liability) of [Kusler], his employees, agents or lower-tier

subcontractors, then [Kusler] shall assume the entire liability

therefore, and shall (at [Burchick’s] sole option) defend any

action, pay all costs including attorney’s fees and satisfy any

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judgment entered against [Burchick], and further agrees to hold

[Burchick] and its agents, servants, employees and sureties

harmless therefore. [Kusler’s] obligations under this Paragraph

shall be in addition to any indemnity liability imposed by the

Subcontract, including, without limitation, the Contract

Documents.

***

e. [Kusler’s] assumption of liability is independent from and not

limited in any manner by…worker’s compensation acts….

***

ARTICLE VI: Indemnification

a. To the full extent permitted by law, [Kusler] agrees to defend,

indemnify and hold harmless [Burchick] and Owner…from and

against any and all claims, demands, injuries, fines, penalties,

losses, expenses (including attorney’s fees), damages and

liabilities of every nature (including contractual liability

“Losses”), arising from or relating to Work performed by [Kusler]

on the Project…whether or not [Burchick] was alleged to be

negligent, unless [Burchick] was alleged to be solely negligent.

[Kusler’s] obligations under this Article shall be in addition to any

independent liability imposed by the Contract Documents.

Without limitation, this indemnity shall extend to Losses arising

from [Kusler’s] violations of Laws. [Kusler’s] indemnity

obligations under this Paragraph shall not be limited by

applicable worker’s compensation laws, and, with respect to this

indemnity, [Kusler] hereby expressly waives all immunities and

defenses that it may have under such Laws.

Burchick Construction Company, Inc. Subcontract Agreement, 6/12/07, at 3-

4.

Burchick maintains that, when read together, Articles IV and VI evince

Kusler’s intent to indemnify Burchick for injuries incurring to Kusler’s

employee’s caused by Burchick’s negligence. Furthermore, Burchick claims

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the following language was sufficient to waive Kusler’s employer immunity

under the act:

(1) [I]n Article IV, Kusler agreed to assume “the entire

liability” and to defend and to hold [Burchick] harmless in

any action where a person, “including an employee of

[Kusler],” suffers an injury or death as a result, in whole or

in part, of Kusler’s negligence; and

(2) in Article VI, Kusler agreed to defend, indemnify and hold

harmless [Burchick] from and against any and all claims

“arising from or relating to Work performed by [Kusler] on

the Project…whether or not [Burchick] was alleged to be

negligent.”

Burchick’s Brief at 11 (emphasis in original).

Burchick also directs our attention to Hackman v. Moyer Packing,

where our Court held that the following language sufficiently waived

immunity under the Workers’ Compensation Act:

[Indemnitor]…agrees to indemnify, save and hold harmless

[Indemnitee], its subsidiaries, affiliates, their directors, officers,

agents, workmen, servants, or employees, against any and all

claim or claims brought by the agents, workmen, servants or

employees of [Indemnitor] for any alleged negligence or

condition, caused or created, [in] whole or in part, by

[Indemnitee].

621 A.2d 166, 168 (Pa. Super. 1993). Burchick alleges the language in

Article IV is sufficiently similar to the Hackman provision to result in a

waiver of Workers Compensation Act immunity. We disagree.

The Hackman provision explicitly provides that “[Indemnitor] agrees

to indemnify…[Indmenitee]…for any alleged negligence or condition, caused

or created, [in] in whole or in part, by [Indemnitee].” Id. (emphasis

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added). Such an express assumption of indemnification liability in

Hackman is absent from the subcontract agreement in the instant case.

Within Article IV, there is no specific language stating that Kusler would

indemnify Burchick for liabilities arising from Burchick’s negligence, i.e.,

language which explicitly states that Party A agrees to indemnify Party B for

injuries caused to Party A’s employee by Party B’s negligence. Instead,

Article IV generally states that Kusler would assume “the entire liability” for

as a result of negligence caused “in whole or in part” by Kusler. We are not

persuaded that this general language is sufficient to meet the dictates of

Bester. We turn our attention to Article VI.

The trial court’s opinion discussed Article VI in depth, and determined

that, when read as a whole, it fails to contain language that specifically

states that Kusler agreed to indemnify Burchick from liability for acts of

Burchick’s own negligence. We see no error in this conclusion. The trial

court’s analysis focused, in part, on the “whether or not” clause located in

Article VI to reach their conclusion that Kusler did not agree to indemnify

Burchick for Burchick’s own negligence. The trial court stated:

[W]hile apparently acknowledging that the “whether or

not” language is insufficient, [Burchick] argues that this

language when considered with “the Indemnification provision of

Article VI as a whole … unequivocally and expressly” satisfies

Bester’s stringent requirements. [Burchick] thus implicitly

argues that, taken as a whole, Article VI “specifically use[s]

language which demonstrates” that Kusler has agreed to

indemnify [Burchick] “for acts of [Burchick]’s own negligence

which result in harm to employees of Kusler.”

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Yet, apart from the “whether or not” clause (which, we are

all agreed, is itself insufficient to do the job), there is nothing in

the language of Article VI that addresses the subject of

[Burchick]’s own negligence. Article VI simply uses broad,

general language of indemnification that the Supreme Court in

Bester has held to be insufficient. For example, Article VI states

that “to the extent permitted by law, the subcontractor agrees to

defend, indemnify, … from and against any and all claims….” In

short, even when considered as a whole, Article VI does not

explicitly state that Kusler is obligated to indemnify [Burchick]

for acts of Burchick’s own negligence.

The Pennsylvania Supreme Court reached a similar result

in Greer v. City of Philadelphia, 795 A.2d 376, 379 (Pa.

2002), where the court also considered “whether or not”

language. The contract in Geer “provide[d] indemnity from

claims for damages ‘only to the extent caused in whole or in part

by negligent acts or omissions of the [indemnitor]…and

regardless of whether or not such claim…is caused in part by

[the indemnitees]. The Supreme Court held that this clause did

not require the indemnitor to indemnify the indemnitees for the

indemnitees own negligence in any amount, not complete

indemnity or partial indemnity. The Supreme Court concluded

that the “contract simply does not put it beyond doubt by

express stipulation that [the indemnitor] intended to indemnify

[the indemnitees] for their own negligence.

The Greer court further stated: “we read the…part of the

provision, which states that the indemnity clause will apply

‘regardless of whether or not such claim…is caused in part by a

party indemnified hereunder[,]’ merely to clarify that any

contributory negligence by [the indemnitees] will not bar their

indemnification for damages due to [the indemnitor’s]

negligence.”

Trial Court Opinion, 6/12/12, at 6-7 (some internal citations omitted).

The language before the “whether or not” clause in Article VI

explicitly states that Kusler will indemnify Burchick for negligence arising

from Kusler’s work. We do not agree with Burchick that the resulting effect

of the “whether or not” clause is to impose indemnification liability on Kusler

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for negligence arising from Burchick’s work. Instead, as in Greer, this

clause merely clarifies that Kusler will indemnify Burchick for Kusler’s

negligence, and that any contributory negligence that may be attributed to

Burchick will not bar their indemnification for damages arising from Kusler’s

negligence.2

In sum, when read as a whole, Articles IV and VI fail to sufficiently

express, by clear and unequivocal language, that Kusler agreed to indemnify

Burchick for Burchick’s negligent acts. Accordingly, Burchick’s first

argument fails.

Burchick claims in his second argument that, at a minimum, the

aforementioned language requires Kusler to indemnify it to the extent that

Kusler was negligent. See Burchick’s Brief at 12. Before addressing the

merits of this claim, we must first discuss Kusler’s contention that Burchick

waived this argument by failing to raise the issue before the trial court and

by failing to preserve the issue in its motion for post-trial relief.

Generally, post-trial relief will not be granted for issues raised in pre-

trial proceedings unless the underlying grounds are specifically stated in a

post-trial motion. See Pa.R.Civ.P. 227.1(b)(1)-(2). During pre-trial

____________________________________________

2

The remainder of Article VI does not contain clear and unequivocal

contractual language providing for indemnification based on the negligent

acts of Burchick. While the final sentence of Article VI can be summarized

as an attempt to generally waive all immunities under the Act, such waiver is

ineffective since there is a lack of an express assumption of indemnification

liability on the part of Kusler for the negligence acts of Burchick.

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proceedings, Burchick attempted to join Kusler and an additional defendant

on indemnification grounds on two separate occasions: first by an additional

defendant complaint and second by a motion for leave to file amended

complaint to join Kusler as an additional defendant.

In the initial additional defendant complaint, Burchick specifically

sought to join Kusler through a contractual indemnification claim for

negligence arising from Kusler’s work on the project. See Complaint to Join

Additional Defendant Kusler Masonry, Inc., 1/8/10, ¶¶ 17-18.

Furthermore, Burchick’s motion for post-trial relief specifically referenced the

additional defendant complaint as the basis for Burchick’s indemnification

claim. See Motion for Post-Trial Relief, 9/4/12, at ¶¶ 3, 6, and 10.

Accordingly, we find that Burchick has properly preserved this issue for

review and thus proceed to the merits.

In opposition to Burchick’s second claim that the subcontract requires

Kusler to indemnify Burchick to the extent Kusler is liabile, Kusler contends

that allowing such a claim to proceed would ignore the fundamental

character of an indemnification claim. See Appellee’s Brief at 29-31. In

support of this assertion, Kusler cites to the Black’s Law Dictionary definition

of “indemnity,” as well as relevant case law setting forth the general nature

of a claim of indemnity. We find these propositions unpersuasive since they

generally relate to a claim arising out of common law indemnity. Common

law indemnity concerns are irrelevant to our determination here since the

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parties entered into a written contract of indemnity that specifically sets

forth the rights and duties of each party to the contract. See Eazor

Express, Inc. v. Barkley, 272 A.2d 893, 895 (Pa. 1971) (“These [common

law indemnification] cases, however, are not apposite where, as here, there

is a written contract setting forth the rights and duties of the parties. The

contract must govern.”). Thus, resolution of this issue is determined by the

terms of the parties’ contract.

In Article IV, the parties agreed that “[i]f any person (including

employees of [Kusler]) suffers injury or death…as a result, in whole or in

part, of negligence…of [Kusler], his employees, agents or lower-tier

subcontractors, then [Kusler] shall assume the entire liability therefore…”

Construction Company, Inc. Subcontract Agreement, 6/12/07, at 4. By

using this language, Kusler agreed to assume the entire liability for any

injury or death incurred to its employees as a result of Kusler’s own

negligence, whether the entire liability can be attributed to Kusler or only a

portion thereof. The provision defines the scope of indemnification by

requiring Kusler to indemnify Burchick for the entire liability if the underlying

liability is at least caused, in part, by Kusler’s negligence.

Furthermore, in Article VI, Kusler agreed to indemnify Burchick

“against any and all claims…arising from or relating to the Work performed

by [Kusler] on the Project…whether or not [Burchick] was alleged to be

negligent, unless [Burchick] was alleged to be solely negligent.” Id. This

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provision further clarifies the scope of the indemnity by providing

indemnification for the entire liability, even if Burchick is contributorily

negligent but not solely negligent.

Both articles are examples of intermediate form indemnity provisions.

See Trisha Strode, From the Bottom of the Food Chain Looking Up:

Subcontractors Are Finding That Additional Insured Endorsements Are Giving

Them Much More Than They Bargained for, 23 St. Louis U. Pub. L. Rev. 697,

700 (2004); see also Nancy J. White, Death, Taxes, and .... Insurance:

Current Legal Issues Relating to Insurance in the Construction Industry, 36

Real Est. L.J. 154, 157 (2007). “The intermediate form indemnity requires

the indemnitor to save and hold harmless the indemnitee for all liability

excluding that which arises out of the indemnitee's sole negligence.” Strode

supra, 23 St. Louis. U. Pub. L. Rev. at 700.

Currently, there is a dearth of Pennsylvania case law regarding the

interpretation of intermediate form indemnity provisions. Notwithstanding,

intermediate form indemnities are sufficiently similar to the broad form

indemnities discussed in Perry, Ruzzi, and Bester that adoption of that

analytical framework is proper in this case. This is because intermediate

form indemnities present the same concerns as broad form indemnities due

to their unique nature and the potentially hazardous consequences of the

resulting liability.

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For instance, based on the terms of a standard intermediate form

indemnity, if an indemnitor were found even one percent negligent, the

indemnitor would be liable for the entire amount of liability. Based on this

unusual and extraordinary result, we will not assume the indemnitor

intended to assume this responsibility unless the express terms of the

contract puts it beyond doubt. Therefore, we require contracting parties

who desire to clearly and unequivocally provide that (1) the

employer/indemnitor waive immunity under the Act by stating that the

employer/indemnitor will indemnify a third party against claims by

employees of the employer/indemnitor, and (2) the employer/indemnitor

agrees to indemnify a third party for liability arising from acts of the

employer/indemnitor which result in harm to the employer/indemnitor’s

employees.

With this standard in mind, we turn to the agreement. With respect to

Article IV, we find that its language fails to specifically address indemnity

liability. Instead, Article IV uses broad and general terms stating that Kusler

would “assume the entire liability and … defend any action, pay all costs …

and satisfy any judgment.” Burchick Construction Company, Inc.

Subcontract Agreement, 6/12/07, at 4. By using such generalized language,

we cannot assume the parties intended to enter into an intermediate form

indemnity agreement.

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On the other hand, Article VI sufficiently waives immunity under the

Act by providing for indemnification, and also specifically sets forth the

terms of the indemnification. In Article VI, Kusler agreed to indemnify

Burchick for claims arising from Kusler’s work, so long as Burchick was not

solely negligent. Beyond this explicit intent to enter into an intermediate

form indemnity, Kusler also explicitly waived the immunities provided by the

Act. See id. (“[Kusler]’s indemnity obligations under this Paragraph shall

not be limited by applicable worker’s compensation laws, and, with respect

to this indemnity, [Kusler] hereby expressly waives all immunities and

defenses it may have under such Laws.”). This language is sufficient to

establish the parties’ intent to enter into an intermediate form indemnity

agreement.

Therefore, we find that Kusler agreed to indemnify Burchick for the

entire liability if the liability stemmed from Kusler’s partial or sole

negeligence. Since Burchick’s alleged indemnity claim stems from Kusler’s

alleged sole or partial negligence, Burchick adequately pled this claim. Thus,

the trial court erred by dismissing Burchick’s additional defendant complaint.

Accordingly, we reverse the trial court order dismissing the additional

defendant complaint, and remand the matter to the trial court for a

determination regarding the extent, if any, of Kusler’s negligence for the

underlying liability in this matter.

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Judgment reversed. Case remanded for proceedings consistent with

this memorandum. Jurisdiction relinquished.

President Judge Emeritus Ford Elliott joins the memorandum.

Judge Olson files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/10/2014

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