stating that indemnity clauses in construction contracts normally apply only to third- party claims
How later courts described this case
- stating that indemnity clauses in construction contracts normally apply only to third- party claims
- stating that indemnity clauses normally apply only to third party claims
- construing contract between general contractor and subcontractor
- applying Restatement (Second) Conflicts of Law § 188 (1971)
Written by the judges who cited it.
The opinion
ON MOTIONS FOR REARGUMENT
DUFFY, Justice:
Cannon, Dorr-Oliver and Barcroft, respectively, have moved for reargument as to certain but separate parts of the August 30, 1978 opinion. We consider the motions, seriatim.
As to Cannon
Cannon seeks reargument in two basic respects.
First, it contends that the scope of the work necessary under the warranty was significantly less than that for which the Court awarded “inducement” money and that it (Cannon) is entitled to a judgment for work performed in excess of its obligation. Since there is evidence to support the findings of the Trial Judge, the contentions are without merit. In so repeating, we note that our reference in the opinion to Cannon’s recommendation for total relining of certain tanks was for illustrative purposes only; it was neither stated nor intended to be support for all findings.
Second, Cannon argues that the judgment awarded to Dorr-Oliver is not based upon competent evidence. This amounts to no more than a restatement of Cannon’s original contention which we have already rejected.
As to Dorr-Oliver
Dorr-Oliver seeks reargument of Part V of the opinion which denies its cross-appeal for attorney fees and litigation expenses. It argues that the ruling is contrary to the majority rule and should be determined by reference to Pennsylvania or Connecticut law.
Clearly, the contract calls for performance of the work in Delaware, and the claim is based in legal theory on the “destruction of . property” clause in the indemnity provision. That property is, of course, located here. In the absence of an effective choice of law by the parties to the contract, we conclude that this State has such a close relationship to the transaction and the parties that we should apply Delaware law. Restatement of the Law, Second Conflict of Law 2d § 188, see pp. 575, 580. Two of the four parties are Delaware corporations, the property which gives rise to the claim is located here and the indemnification sought is for legal fees and expenses involved in this lawsuit. So viewed, we remain of the opinion that the indemnification clause, in this case, refers to claims by third persons, only. 1
As to Barcroft
Barcroft argues that the discussion and decision as to depreciation should be deleted from the opinion because, at trial, Barcroft met its burden of proving the amount of projected gross income (which would have been received but for the shutdown) and it is Cannon’s obligation to show for what purpose and by what amount such income should be reduced.
The formula used by the Trial Judge in making the computations provides surface support for Barcroft’s argument. But the manner of calculation, however appropriate, may not obscure the reality of what is *1167 involved. The facts are that the judgment in Barcroft’s favor includes an allowance for depreciation, that the basis for such allowance was litigated in this Court and was determined to be erroneous. And the bottom line is that Barcroft’s judgment for lost profits must be set aside and the depreciation factor recomputed in with our opinion, accordance
M motions for reargument are denied.
. Indemnity is promised as to causes of action for “injury to or death of any person” and for “destruction of any property” resulting from Cannon’s conduct in performance of the work.