Opinion
CIVIL ACTION No. 05C-01-224-JOH.
Submitted: June 13, 2008.
Decided: July 29, 2008.
Upon Motion of Defendant Happy Harry's, Inc., for Partial Reargument and/or Clarification — DENIED .
Michael F. Bonkowski, Esquire, of Cole Shotz, Wilmington, Delaware, attorney for the plaintiff Jonathan Layton, Esquire, of Gary A. Bryde, P.A., Wilmington, Delaware, attorney for defendant Realty Enterprises, LLC.
Seth J. Reidenberg, Esquire, of Young Conaway Stargatt Taylor, Wilmington, Delaware, attorney for defendant Valley-Limestone Development, LLC.
Max B. Walton, Esquire, of Connolly Bove Lodge Hutz, Wilmington, Delaware, attorney for defendant Happy Harry's, Inc.
James S. Green, Esquire, of Seitz Van Ogtrop Green, Wilmington, Delaware, attorney for third-party defendants Anthony Bariglio and Todd Bariglio.
MEMORANDUM OPINION
Defendant Happy Harry's, Inc., moves for re-argument or clarification of a portion of this Court's opinion of May 27, 2008. The portion of the Court's opinion for which it seeks re-argument/clarification is that in which the Court held that the indemnification provision in the lease between Valley-Limestone, LLC (a co-defendant) and Happy Harry's did not cover plaintiff Patterson-Woods' tort claims.
Patterson Woods Associates v. Realty Enterprises, LLC, et al, 2008 WL 2231511 (Del.Super.).
Applicable Standards
In deciding a motion for re-argument the issues are whether in its earlier opinion the Court overlooked a controlling precedent or legal principle or this Court misapprehended the law or the facts to the degree that its decision would change. A motion for re-argument is not the means by which previous arguments should be rehashed.
Kennedy v. Invacare Corp., 2006 WL 488590 (Del.Super.).
Mizel v. Xenonics, 2008 WL 484448 (Del.Super.).
Decision
The indemnification clause upon which Happy Harry's relies reads:
Each party represents to the other that no broker has been involved in this transaction. It is agreed that if any claims for brokerage commissions or fees are ever made against LANDLORD or TENANT in connection with this transcaction, all such claims shall be handled and to the exten[t] finally determined to be due, shall be paid by the party whose actions or alleged commitments form the basis of such claim. It is further agreed that each party agrees to indemnify and hold harmless the other from and against any and all such claims or demands with respect to any brokerage fees or agents' commissions or other compensation asserted by any person, firm, or corporation in connection with this AGREEMENT or the transaction contemplated hereby.
In its earlier decision this Court held the above provision only related to Happy Harry's or Valley-Limestone being held liable for brokerage commissions.
Patterson-Woods, 2008 WL 2231511 at *16.
Happy Harry's argues again that this indemnification provision applies to liability for Patterson-Woods' tort claims in addition to any liability for brokerage commissions. Specifically, it contends the words "other compensation" apply to the tort claims which Patterson-Woods has brought against it (and others).
It cites no authority, however, that "other compensation" in the context of this case, or a lease, or the claims and the contractual language itself applies to tort claims. Its argument takes the words "other compensation" out of context. That context is fully set out in the Court's earlier opinion. In sum, this case revolves around efforts made to sell and obtain a tenant for a property at 611 Valley Road in Hockessin. All of the contracts revolved around sales, listing and lease agreements.
Accordingly, the indemnification clause has to be taken in that context. That means three things. One, just because Happy Harry's and Patterson-Woods may disagree over the meaning of "other compensation" does not make the words ambiguous. Two, contractual provisions should be read to accord with the reasonable expectations of the parties. Three, the words "other compensation" must be read in context with the words immediately preceding them.
Rhone-Pondinc v. American Motorists, Inc., 616 A.2d 1192, 1195 (Del. 1992).
See Steigler v. Insurance Co. of North America, 384 A.2d 398, 401 (Del. 1978).
Interpretation of contracts is a matter of law. The words "other compensation" appear in the phrase "hold harmless . . . against any all such claims or demands with respect to any brokerage fees or agents' commissions or other compensation . . ." This language follows earlier provisions in the same paragraph that say no broker was involved (placed there at Happy Harry's request in the Happy Harry's/Valley-Limestone transaction). Further, the next sentence uses the words "claims for brokerage commissions or fees." The words "such claims" later used in the indemnification sentence clearly modify those words.
Hudson v. State Farm Mut. Ins. Co., 569 A.2d 1168, 1170 (Del. 1990).
In addition, the phrase brokerage fees, commissions and other compensation modify each other and read utilizing the ejusdem genaris approach, "other compensation" relates to such fees or commissions and not to damages that may arise in tort actions. Patterson-Woods' action has tort claims in it. The indemnification provision is in alease. There is no arguable basis for saying "other compensation" includes damages in tort.
Sadler v. New Castle County, 565 A.2d 917, 923 (Del. 1989).
As if the above analysis were not enough to demonstrate the fallacy of Happy Harry's motion to reargue, there is an additional principle applicable here. Under Delaware law, contract provisions which purport to indemnify a party for its own negligent conduct are generally disfavored. Furthermore, in order for such a provision to be enforceable, the language articulating such an intent must be clear and unequivocal. This language does not meet those tests.
Axel v. Damar, Inc., 2007 WL 2446839 (Del.Super.).
Id.
This principle further manifests that in this lease the parties were not covering each other's negligence or damages for negligence or non-contractual tort claims.
Conclusion
For these reasons, the motion of defendant Happy Harry's, Inc. for re-argument or clarification is DENIED.