Opinion
C.A. No. 01C-02-027 WLW.
Submitted: October 8, 2003.
Decided: November 17, 2003.
I. Barry Guerke, Esquire, Parkowski Guerke, Dover, Delaware, Attorneys for Plaintiffs.
Norman H. Brooks, Esquire, Marks, O'Neill, O'Brien Courtney, Wilmington, Delaware, Attorneys for Defendant.
David L. Baumberger, Esquire, Chrissinger Baumberger, Wilmington, Delaware, Attorneys for Third-Party Defendant.
Introduction
Before this Court is Defendant's Motion for Reargument of Third-Party Defendant's Motion to Dismiss Third-Party Complaint. Third-Party Defendant opposes the motion. Defendant has presented a case which was not cited in the original motion and impacts on the decision rendered by the Court; therefore, after reconsideration of the motion, the Court finds that Defendant's motion should be granted.
Background
This is a personal injury action arising out of a construction accident in which Steven Wilson ("Wilson" or "Plaintiff") sustained injuries. Active Crane Rentals, Inc. ("Active Crane" or "Defendant") allegedly rented a crane to the Third-Party Defendant, Colby Enterprises of Pemberton, Inc. ("Colby" or "Third-Party Defendant"), for use during a construction project to lift roof trusses. While Active Crane operated the crane, the crane contacted the wooden trusses and caused them to fall. Wilson was injured by the falling trusses.
The procedural history of the case is laid out in this Court's original decision on the Defendant's Motion to Dismiss Third-Party Complaint. In that decision, this Court dismissed the contractual indemnification aspect of the third-party complaint, but did not dismiss Colby. Active Crane then filed this Motion for Reargument on August 19, 2003, requesting that this Court reconsider its decision. Colby filed its opposition to the motion on September 15, 2003. Colby then filed additional comments with the Court's permission on October 8, 2003.
Analysis
Standard of Review
Superior Court Civil Rule 59 permits a party to file a motion for reargument within 5 days after the filing of the Court's opinion. The Court determines from the motion and the answer whether to grant the reargument. When determining a motion for reargument, the Court must consider whether it "overlooked a precedent or legal principle that would have controlling effect, or that it has misapprehended the law or the facts such as would affect the outcome of the decision." Discussion
Gass v. Truax, 2002 Del. Super. LEXIS 442 at *4.
Active Crane claims that the Court was incorrect in dismissing their claim for contractual indemnification, because a jury may conclude from the facts that Active Crane's employee was actually under the control and direction of Colby and should be considered a Colby employee under the borrowed servant doctrine. If the crane operator is found to be a Colby employee, Title 6 Del. C. § 2704 (a) of the Delaware Code would not come into play because Colby would be indemnifying Active Crane for Colby's employee's negligence. However, Colby argues that it never entered into a contract with Active Crane and that it never authorized anyone to enter into the contract on its behalf. In addition, Colby claims that Active Crane is seeking to enforce the indemnity provision against a party that was not present at the work site and did not have any employees at the work site.
The basis of Active Crane's motion is that the Court failed to consider the borrowed servant doctrine as discussed in the recent Supreme Court decision Volair Contractors, Inc. v. AmQuip Corp. In that case, AmQuip entered into a contract with Volair which provided that AmQuip was to provide a crane and operator to assist in the installation of air conditioning units. Volair's employees gave the AmQuip operator specific instructions and procedures for performing the job. While the units were being moved, a Volair employee not involved in the moving of the units fell through an uncovered hole in the roof and sustained injuries. The employee filed suit against AmQuip, the crane operator, and the general contractor. AmQuip demanded a defense and indemnity by Volair. When Volair refused, AmQuip filed a third-party complaint against Volair seeking contractual indemnification based on the rental contract. Volair contended that the contract was invalid based on public policy and Title 6 Del. C. § 2704 (a) of the Delaware Code. AmQuip contended that under the borrowed servant doctrine, a question of fact was raised as to whose employee the crane operator was at the time of the accident. That is, they contended that because the crane operator was under the direction and control of Volair employees while operating the crane, he would be considered an employee of Volair, not AmQuip. Based on this, AmQuip argued that § 2704(a) would not apply to render the indemnification clause invalid, because the clause could be interpreted as Volair indemnifying AmQuip for the negligence of a Volair employee. The trial court agreed with this interpretation and the jury was asked to decide whose employee the crane operator was. The jury found that the crane operator was an employee of Volair at the time of the accident, and thus the contractual indemnification clause could be enforced. The Supreme Court upheld the Superior Court's interpretation of the statute and contractual language.
829 A.2d 130 (Del. 2003).
6 Del. C. § 2704(a) states in relevant part:
A covenant, promise, agreement or understanding in, or in connection with . . . a contract . . . relative to the construction, alteration, repair or maintenance of a . . . building [or] structure . . . including without limiting the generality of the foregoing, the moving, demolition and excavating connected therewith, purporting to indemnify or hold harmless the promisee or indemnitee . . . for damages arising from liability for bodily injury or death to persons or damage to property . . . arising partially or solely out of the negligence of such promisee or indemnitee . . . or its subcontractors, agents, servants or employees, is against public policy and is void and unenforceable, even where such covenant, promise, agreement or understanding is crystal clear and unambiguous in obligating the promisor or indemnitor to indemnify or hold harmless the promisee or indemnitee from liability resulting from such promisee's or indemnitee's own negligence. This section shall apply to all phases of the preconstruction, construction, repairs and maintenance described in this subsection . . .
In Volair, the Supreme Court stated the borrowed servant doctrine as:
[A]n employee, with his consent, may be loaned by his general employer to another to perform specific services, and that, in the course of and for the purpose of performing such services, he may become the employee of the specific employer rather than the employee of the general employer . . . Accordingly, a loaned employee may become the specific employer's employee while at the same time remaining, generally speaking, the employee of him who loans his services. 829 A.2d at 134, quoting Richardson v. John T. Hardy Sons, Inc., 182 A.2d 901, 902 (Del. 1962).
The contract in the present case states in relevant part:
Lessee agrees to hold lessor harmless for loss, damage and expense resulting from the operation of the above mentioned equipment either bodily injury or property damage including damage or loss of equipment leased herein and agrees to defend lessor from all suits resulting from above operation.
Applying the borrowed servant doctrine in the present case could lead a jury to conclude that the crane operator, employed by Active Crane and loaned to Colby, was operating under the direction of Colby employees and thus was a Colby employee. As such, if the indemnification clause were to be enforced, Colby would not be indemnifying Active Crane for its negligence but rather indemnifying Active Crane for Colby's negligence. This would not violate § 2704(a), as the purpose of the statute is to prohibit a party from being indemnified for its own negligence.
Based on this, the Court will reconsider its previous decision dismissing Active Crane's claim for indemnification based on the contractual provision and this claim will not be dismissed. It may be appropriate for the jury to decide whether the crane operator was Active Crane's employee or Colby's employee.
IT IS SO ORDERED.