# Bester v. Essex Crane Rental Corp.

> Superior Court of Pennsylvania · January 8, 1993 · 422 Pa. Super. 178

URL: https://www.frixlaw.com/law-library/cases/9747295

## Case

- **Full name:** Raymond E. BESTER and Judith Bester, His Wife, v. ESSEX CRANE RENTAL CORPORATION v. RUSSELL CONSTRUCTION COMPANY
- **Court:** Superior Court of Pennsylvania
- **Decided:** January 8, 1993
- **Citations:** 422 Pa. Super. 178; 619 A.2d 304; 1993 Pa. Super. LEXIS 15
- **Precedential status:** Published
- **Opinion:** Concurrence by Kelly
- **Judges:** Rowley, Cavanaugh, McEwen, Sole, Beck, Tamilia, Kelly, Popovich, Elliott
- **Cited by:** 43 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/9747295

## How later opinions describe it (automated extraction)

- finding that in order to meet the standards for indemnification under the Pennsylvania Workers’ Compensation Act, the agreement must “specifically use language which demonstrates that a named employer agrees to indemnify a named third party from liability for acts of that thir…
- holding that indemnification clause in contract between employer and equipment lessor did not meet statutory requirement that employer “expressly provide[ ] for” indemnification to effectuate waiver of immunity from suits by third parties
- holding that Pennsylvania law requires express and specific waivers of workers' compensation immunity before a third party can receive indemnification

## Opinion text

KELLY, Judge,
concurring.
I concur in the result reached by the majority. I would affirm the order sustaining Russell Construction’s preliminary objections solely on the ground that the indemnification clause at issue did not indemnify Essex Crane for the negligent acts of its employees. 1
*189 As the majority notes, see Majority opinion at 187-88 n. 2, under long-established Pennsylvania lav?, in order to provide indemnification for the negligent acts of an indemnitee, the contract language must be clear and unequivocal. Ruzzi v. Butler Petroleum Co., 527 Pa. 1, 7 , 588 A.2d 1, 4 (1991).
[A] contract of indemnity against personal injuries should not be construed to indemnify against the negligence of the indemnitee, unless it is so expressed in unequivocal terms. The 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. No inference from words of general import can establish it.
Id., quoting Perry v. Payne, 217 Pa. 252, 262 , 66 A. 553 (1907).
The indemnification clause at issue provides:
The Lessee shall defend, indemnify and hold forever harmless Lessor against all loss, negligence, damage, expense, penalty, legal fees and costs, arising from any action on account of personal injury or damage to property occasioned by the operation, maintenance, handling, storage, erection, dismantling or transportation of any Equipment while in your possession. Lessor shall not be liable in any event for any loss, delay or damage of any kind of character resulting from defects in or inefficiency of the Equipment hereby leased or accidental breakage thereof.
Reproduced Record at 52A. Under established case law, this contract cannot be construed to provide coverage for the negligent acts of Essex Crane’s employees. See Ruzzi, supra. See also Pittsburgh Steel Co. v. Patterson-Emerson-Comstock, Inc., 404 Pa. 53 , 171 A.2d 185 (1961) (contractor’s promise to “indemnify, save harmless and defend buyer from all liability for loss, damage or injury to person or property in any manner arising out of or incident to performance of this order” held too broad to indemnify against buyer’s negligent acts).
That the contract does not indemnify against Essex Crane’s employee’s negligence is sufficient reason to affirm the trial *190 court’s order. The majority holds, however, that waiver of an employer’s Workers’ Compensation Act Immunity must be just as specific, if not more specific, despite our decision in Szymanski-Gallagher, 409 Pa.Super. 323 , 597 A.2d 1225 (1991). It is the treatment of this issue that I cannot join.
As we stated in Szymanski-Gallagher, supra, the Workers’ Compensation Act waiver provision, 77 P.S. § 481(b), does not require more than “an express agreement to indemnify that fairly implicates liability under the facts alleged.” Szymanski-Gallagher, supra at 331 , 597 A.2d at 1229 . In that case, we held that an indemnification for harm against “any person” provided indemnity for harm against the indemnitor’s employees. Id. 2
I continue to believe that such language evidences the indemnitor’s intent to accept “double responsibility.” Majority opinion at 185-87. In short, undertaking liability for harm to “any person” brought upon by the negligence of the indemnitee constitutes “plain language which would avoid the employer’s protection from double responsibility,” id. See Szymanski-Gallagher, supra.
While the majority requires a clause containing plain language, it also reassures that an indemnification contract’s “enforceability does not require that the employer, in addition, expressly and in haee verba waive the immunity provided by § 481(b) of the Workmen’s Compensation Act.” Majority *191 opinion at 183-187. Therefore, for indemnification, a prospective indemnitee must state that the clause applies to the indemnitor’s employees more specifically than was done in Szymanski-Gallagher, supra (“any person”), but need not actually spell out that the employer would waive its immunity under the Worker’s Compensation Act. I disagree. I would interpret “any person” as specific enough to mean that the employer-indemnitor intended to accept liability for injuries to any person, including its own employees.
In the instant case, I would find that Russell Construction’s preliminary objections were properly sustained because it did not contract to indemnify against the alleged negligent acts of John Henderson, an Essex Crane employee. I cannot join the majority opinion, however, which requires more than “an express agreement to indemnify that fairly implicates liability under the facts alleged,” Szymanski-Gallagher, supra at 311 , 597 A.2d at 1229 , in order to find that an employer has waived its statutory immunity pursuant to 77 P.S. § 481(b).
Hence, I concur only in the result reached by the majority.
McEWEN, J., joins this concurring statement.
. I also agree that the result reached herein does not require us to address the issue of late joinder.
. In Szymanski-Gallagher, supra, we noted that the court in Remas v. Duquesne Light Co., 371 Pa.Super. 183 , 537 A.2d 881 (1988), allocatur denied, 520 Pa. 597 , 598, 552 A.2d 251 , 252 (1988) added surplusage which implied that an express waiver of immunity was necessary. Szymanski-Gallagher, supra, 409 Pa.Super. at 330-31 , 597 A.2d at 1229 . We explained that such a rule was not necessary to reach the result in Remas , because the contract therein only indemnified Duquesne Light against claim arising from acts committed by Green Security Services, Inc. or its agents. There was no indemnification for acts committed by Duquesne itself. Therefore, the Remas court was correct in finding that the indemnification language “could not be construed as an indemnity undertaking or an assumption of liability by Gregg for harm to employees caused by conduct of Duquesne.” Remas, supra, 371 Pa.Super. at 187-88 , 537 A.2d at 883 (emphasis added). Accordingly, we are not compelled to infer from Remas that a waiver will only be enforced if it contains highly specific language that the employer waive its statutory immunity. Szymanski-Gallagher, supra.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9747295. Public record. Not legal advice.