also quoting Crosetti Bros., Inc., 256 Or. 576, 475 P.2d at 71
How later courts described this case
- also quoting Crosetti Bros., Inc., 256 Or. 576, 475 P.2d at 71
Written by the judges who cited it.
The opinion
HUNTLEY, Justice,
dissenting.
It is my view that the decision reached by the trial court and the majority of this Court flows from a misreading of the state standard specification paragraph section 107.10, which, in skeleton form provides:
107.10 RESPONSIBILITY FOR DAMAGE. The contractor shall indemnify ... [the state] ... from all suits ... brought because of any injuries or damages received by any person, persons, or property on account of the operations of the contractor ...”
The jury returned a special verdict finding Asphalt free from any tort liability in the manner in which it performed its work. Thus, the damage to the building was not caused by operations of the contractor but rather was caused by virtue of the fact that the State of Idaho decided to rebuild the street, during which rebuilding the State did require that the compacting process through use of heavy vibratory equipment be accomplished. The jury having found that the contractor did nothing improperly, the “operation” was that of the State in rebuilding the street.
More importantly, the plain wording of Specification 107.10 is that there shall be indemnification because of injuries or damages received by any third person or property on account of the operations of the contractor — the jury having found there were no injuries or damages to any third party or property, the contractor has no liability under the specification. The trial court, and the majority herein, fail to appreciate the distinction between the duty to indemnify and the duty to defend and in effect have made Asphalt the State’s insurer against spurious lawsuits.
Accordingly, I would reverse and remand for entry of judgment in favor of Asphalt Paving and Construction Company, Inc.