Opinion
C.A. No. 01C-06-240 SCD.
Submitted: April 12, 2004.
Decided: June 25, 2004.
Upon Consideration of Defendant's/Third-Part Plaintiff's, Concord Mall, L.L.C, Motion for Summary Judgment — DENIED.
OPINION
Plaintiff, Vincent A. Jackson ("plaintiff"), was injured while working as an employee of Advanced Management Concepts, Inc. ("AMC"), a janitorial service contracted to provide cleaning services at the Concord Mall in Wilmington, Delaware. The injury occurred when plaintiff slipped on a puddle of water in the mall's common area.
Plaintiff brought a suit for negligence against Concord Mall, L.L.C. ("Concord Mall"), and The Plant Place. Concord Mall filed a cross-claim against The Plant Place and a third-party complaint against AMC. Both the cross-claim and the third-party claim seek contractual indemnification. Plaintiff has since settled his claims with both The Plant Place and Concord Mall. Concord Mall now moves for summary judgment on the contractual indemnification claims.
Statement of Facts
Plaintiff was working at the Concord Mall on June 28, 1999. During the course of his employment, he slipped in a water puddle and fell while attempting to move a bench back into place prior to cleaning the floor in the mall's common area.
Immediately prior to plaintiff's fall, Robert Goff ("Goff"), an employee of The Plant Place, was watering interior plants using a hose connected to an interior wall faucet. It was usual for his work to result in excess water on the floor, and he routinely finished by mopping up the spilled water. Goff had a habit of pulling a bench across the wet area until he could mop it up. He testified that he often would not put the benches back in place because he knew the cleaning people would move them. On the day in question, he left the area to get a mop. While he was away, the plaintiff fell.
The Plant Place did not have a specific schedule for the performance of its duties, rather it was left up to each technician's individual discretion. Goff testified that he would complete his work at his convenience during the time that the mall was closed.
AMC, the mall's janitorial services contractor, controlled the method and manner of its employees work. The company provided uniforms, cleaning materials, training, and scheduled staff working hours. William Ferrell, the former president of AMC, testified that in his experience of coordinating other sites for AMC, landowners usually did not coordinate the plant watering process with the janitorial service. He further testified that if the plant watering service was present at the same time as the janitorial staff, it was more of an inconvenience than a problem.
The Plant Place Contract
JMB Group Trust III, the owner of the Concord Mall, through its agent Urban Retail Properties Company ("Urban Retail"), contracted with The Plant Place to maintain the interior landscaping designs inside the mall. The last written contract between the parties was a one-year agreement commencing on January 1, 1998, and terminating on December 31, 1998 — unless continued or cancelled pursuant to Addendum A to the Continuing Service Agreement. Addendum A includes an Indemnification provision which states:
II. TERM
This agreement shall be operative for a term (the "Term") commencing on the date for commencement set forth in the Agreement and, unless sooner terminated pursuant to any provision hereof, ending on the date for termination set forth in this Agreement; provided, if both parties shall continue to perform hereunder after said ending data and neither party shall notify the other of its intention to terminate this Agreement, this Agreement shall be deemed to continue and to remain in full force and effect, on a month to month basis, until either party shall send the other notice of termination.
Concord Mall Continuing Service Agreement for The Plant Place (Oct. 7, 1997) (hereinafter "The Plant Place Contract") at Addendum A p. 1.
X. INDEMNIFICATION
Contractor shall defend, indemnify and hold harmless Owner and its respective present and former general and limited partners, affiliates, officers, agents, servants and employees, from and against any and all claims, demands, losses, damages, injuries, liabilities, expenses, judgments, liens, encumbrances, orders and awards (all of which collectively referred to as "claims"), together with attorneys' fees and litigation expenses, on account of: (1) injury to, or death of, any person, including agents, employees, subcontractors, suppliers or materialmen, (2) loss of, or damage to, property. (3) claims of subcontractors, suppliers, materialmen or workmen. (4) royalties, license fees and claims for patent infringement, or (5) claims against Owner for express or implied indemnity or contribution arising by reason of any of the above, but all of the foregoing shall apply only to the extent that the foregoing directly relate to or result from, the Services performed or to be performed, or a product supplied or to be supplied under or in connection with this Agreement.
Id. at Addendum A p. 3. (emphasis supplied).
On December 22, 1998, The Plant Place was notified that its contract had been assigned to Concord Mall, which had entered into an agreement to purchase the property and all its obligations. No contract was ever signed between the co-defendant, Concord Mall, and The Plant Place.
Section 8 of Addendum A, "SUCCESSORS AND ASSIGNS", states "this Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns, and without limiting the generality of the foregoing. Owner shall have the right to assign this Agreement in connection with any sale, transfer or hypothecation of the Property." Id. at Addendum A p. 2.
The AMC Contract
Urban Retail also contracted with AMC to provide janitorial services for the mall. The last written agreement between the parties commenced on February 28, 1998, and terminated on March 1, 1999 — unless continued or cancelled pursuant to Addendum A of the Continuing Service Agreement. Addendum A of the AMC agreement contains the same language as found in Addendum A of The Plant Place agreement. On December 22, 1998, AMC received notice that Concord Mall was the new owner of the mall and had been assigned the janitorial services contract. No contract was ever signed between AMC and Concord Mall.
Concord Mall Continuing Service Agreement for Advanced Management Concepts, Inc. (Nov. 1, 1997) (hereinafter "AMC Contract") at Addendum A pp. 1, 3-4.
Unlike The Plant Place contract, the AMC agreement included a specifications sheet for pre-opening cleaning instructions, containing a detailed list of the work AMC was obligated to perform. The agreement required the floors of the common areas be cleaned and dried before the mall opened to the general public at 9:00 a.m. Thus, the floors were to be cleaned between the hours of 6:00 a.m. and 9:00 a.m.
Standard of Review
Summary judgment may be granted only when no material issues of fact exist. The Court is to examine the record in the light most favorable to the non-moving party. If the Court finds no material issues of fact, the moving party is entitled to judgment as a matter of law.
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
Id.
Id.
Assignment
The Plant Place and AMC argue that at the time of plaintiff's accident there was no valid contract in existence with Concord Mall, and therefore there is no indemnification obligation. Their argument is based on the fact that the term of their agreements with Urban Retail had expired and there was no subsequent contract with Concord Mall.It is undisputed that prior to the date the contract with AMC was scheduled to expire, it was properly assigned. The record indicates The Plant Place received notice of this assignment. Under the "Term" provision, located in Addendum A of the Continuing Service Agreement between the parties, the contract continues after its expiration on a month to month basis.
See The Plant Place Contract at Addendum A p. 2.
See The Plant Place Contract supra, at note 1.
It is undisputed that the same language appears in the valid contract between Urban Retail and AMC, set to expire on March 1, 1999. Additionally, the record indicates AMC received the notice of assignment from Concord Mall prior to the expiration.
AMC Contract at Addendum A pp. 1, 3-4.
I conclude that The Plant Place and AMC agreements were properly assigned upon Concord Mall's purchase of the property from Urban Retail. Neither The Plant Place, nor AMC, notified Concord Mall of a desire to terminate their relationships. Thus, both contractors were bound by their respective agreements on a month to month basis after the expiration of each contractual term.
Indemnification
Concord Mall claims it is entitled to contractual indemnification from The Plant Place and AMC, as a result of the injuries sustained by the plaintiff. The Court recognizes the general rule that such provisions will be construed to indemnify only for a party's own negligence unless another obligation is expressed in a manner which is "crystal clear and unequivocal." There is no claim here that AMC and The Plant Place contracted to indemnify Concord Mall for its own negligence. AMC and The Plant Place allege that there is negligence on the part of Concord Mall, which precludes the entry of judgment.
State v. Interstate Amiesite Corp., 297 A.2d 41, 44 (Del. 1972).
Plaintiff's lawsuit brought against Concord Mall alleged that it was negligent in several respects, including the lack of coordinated scheduling. That claim has been settled. The Plant Place argues that the settlement reached by Concord Mall constitutes evidence that it was negligent. To the contrary, the release indicates that the monies paid "shall not be construed as an admission of liability."
Jackson v. Corporate Landscape Specialists Inc., Del Super., C.A. No. 01C-06-240, "RELEASE" dated Nov. 17, 2003. (Attached at Exhibit D of The Plant Place Response to the Motion for Summary Judgment).
There remains an issue of material fact regarding the conduct of the three corporate entities and how each contributed to the accident. The allocation of that responsibility is the task of a jury.
Concord Mall's motions for summary judgment are DENIED.
IT IS SO ORDERED.