Summary
applying Pennsylvania law
Summary of this case from Edison Learning, Inc. v. Sch. Dist. of Phila.Opinion
Civil Action No. 03-1625.
July 27, 2004
MEMORANDUM AND ORDER
Presently before the Court are Plaintiff ExxonMobil Oil Corp.'s Motion for Partial Summary Judgment against Defendant Steven O'Mara (Docket No. 17), Defendant Steven O'Mara's response thereto (Docket No. 23), Defendants WJL Management Enterprises' and William J. Lucchesi's Motion for Partial Summary Judgment as to Defendant Steven O'Mara's Cross-claim (Docket Nos. 18, 19 20), Defendant Steven O'Mara's response (Docket No. 22), and WJL Management Enterprises' and William J. Lucchesi's reply thereto (Docket No. 24).
I. BACKGROUND
Plaintiff ExxonMobil Oil Corporation ("ExxonMobil") seeks contribution or indemnification from Defendants William J. Lucchesi ("Lucchesi"), WJL Management Enterprises, Inc. (individually and collectively with Lucchesi as "WJL"), and Steven O'Mara ("O'Mara") for a settlement it entered into on November 18, 2002, to resolve a slip and fall case.
The underlying slip and fall action was commenced by Bernard and Doris Nusrein in the Philadelphia County Court of Common Pleas. Mr. Nusrein alleged that on February 18, 2000 he sustained injuries after he slipped on a patch of ice on a walkway near the office of a Mobil service station on City Avenue in Philadelphia. The Nusreins filed suit against Mobil Oil Corporation ("Mobil") on November 16, 2000, alleging that Mobil negligently maintained the premises, causing his fall and subsequent injuries. On February 14, 2001, the Nusreins amended the complaint to include ExxonMobil as a defendant after the two oil companies merged. On November 5, 2001, the Nusreins filed a second amended complaint and added Lucchesi and WJL as defendants because they leased the service station. In August 2002, WJL attempted to add O'Mara as a defendant, alleging that WJL sold its interest in the station to O'Mara on February 1, 2000, and that O'Mara was the sole operator and possessor of the service station at the time of Mr. Nusrein's fall on February 18, 2000. The Philadelphia Court of Common Pleas denied WJL's motion, refusing to add O'Mara as a defendant in the slip and fall case.
On November 18, 2002, ExxonMobil settled the Nusrein's action for $175,000. The Nusreins signed a Joint Tortfeasor Release in which they released only their claims against Mobil and ExxonMobil. Mobil and ExxonMobil admitted liability as joint tortfeasors. The Nusreins did not release their claims against WJL or O'Mara.
ExxonMobil filed the instant action on March 17, 2003 pleading eight counts against WJL and O'Mara. In Counts I and II, ExxonMobil seeks contractual indemnification, and indemnification or contribution based on negligence against WJL for their alleged failure to properly maintain and repair the service station. In Counts III through VII, ExxonMobil alleges WJL and Lucchesi breached various provisions of the Franchise Agreement and the Key Individual Guarantee, respectively, for failing to defend and indemnify Mobil (Counts III and IV), for failing to properly maintain and repair the service station (Counts V and VI), and for failing to obtain Mobil's approval before transferring the Mobil station to O'Mara on February 1, 2000 (Count VII). In Count VIII, ExxonMobil seeks indemnification or contribution from O'Mara, alleging that O'Mara was in sole possession and control of the service station when Mr. Nusrein fell on February 18, 2000.
On July 19, 2004, the Court ordered that ExxonMobil's contractual indemnification and contribution claims against WLJ will be severed at the time of trial from the indemnity claims based on negligence.
WJL and O'Mara have filed cross-claims against each other seeking indemnification or contribution to the extent each is liable to ExxonMobil. WJL has also filed a counter-claim against ExxonMobil, alleging that ExxonMobil breached the franchise agreement by failing to provide WJL with special management and marketing training during the course of their relationship.
In the instant motions, ExxonMobil seeks summary judgment on only Count VIII of the Complaint, its claim against O'Mara for indemnification or contribution based on negligence. Likewise, WJL seeks summary judgment on O'Mara's cross-claim for indemnification or contribution against WJL. WJL also supports summary judgment in favor of ExxonMobil on Count VIII. O'Mara opposes both motions.
II. LEGAL STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party moving for summary judgment has the initial burden of showing the basis for its motion. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant adequately supports its motion pursuant to Rule 56(c), the burden shifts to the nonmoving party to go beyond the mere pleadings and present evidence through affidavits, depositions, or admissions on file showing a genuine issue of material fact for trial. See id. at 324. The substantive law determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the evidence is such that a reasonable jury could return a verdict for the nonmoving party, then there is a genuine issue of fact. See id.
When deciding a motion for summary judgment, all reasonable inferences are drawn in the light most favorable to the non-moving party. See Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993). Moreover, a court may not consider the credibility or weight of the evidence in deciding a motion for summary judgment, even if the quantity of the moving party's evidence far outweighs that of its opponent. See id. Nonetheless, a party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. See Trap Rock Indus., Inc. v. Local 825, 982 F.2d 884, 890 (3d Cir. 1992).
III. DISCUSSION
A. ExxonMobil's Claim against O'Mara
ExxonMobil claims that O'Mara was the possessor of the Mobil station at the time of Mr. Nusrein's fall and, consequently, that O'Mara owes indemnification or contribution to ExxonMobil for the settlement of Mr. Nusrein's claims. The Pennsylvania Supreme Court has explained the fundamental difference between contribution and indemnification as follows:
Contribution comes into force when one joint tortfeasor has discharged a common liability or paid more than its share of such liability, in which case the joint tortfeasor is entitled to reimbursement from the other tortfeasors to the extent that its payment exceeded its own liability. Conversely, the right of indemnification arises when there is a "difference between the primary and the secondary liability of two persons each of whom is made responsible by the law to an injured party." In such a case, the party that is secondarily liable may seek complete reimbursement from the party that is primarily liable for any damages the first-mentioned party has paid.Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368, 370 (Pa. 1951); see Kirschbaum v. WRGSB Assocs., 243 F.3d 145, 156 (3d Cir. 2001); Walker v. Eleby, 842 A.2d 389, 391 (Pa. 2004).
1. Indemnification
Indemnity "is a right which enures to a person who, without active fault on his own part, has been compelled, by reason of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable." McCabe, 77 A.2d at 370. "The difference between primary and secondary liability is not based in degrees of negligence or on any doctrine of comparative negligence — a doctrine which, indeed, is not recognized by the common law. . . . It depends on a difference in the character or kind of the wrongs which cause the injury and in the nature of the legal obligation owed by each of the wrongdoers to the injured person."Id. (citing examples, including the primary liability of a negligent contractor and the secondary liability of the otherwise uninvolved land owner).
A party seeking indemnity must first establish that it was itself liable to the injured party and could have been compelled to satisfy the claim. See Kirschbaum, 243 F.3d at 156;Besser Co. v. Paco Corp., 671 F. Supp. 1010, 1012 (M.D. Pa. 1987). Further, "the indemnitee [has] the burden of justifying his payment of damages by offering against the indemnitor in the second action practically the same evidence as was relied on to establish the case against the indemnitee in the first action." Besser, 671 F. Supp. at 1012. Even where the indemnitee settles before the injured person establishes his original tort claim, the indemnitee is required to prove his case against the indemnitor in the same way that the injured person would have been obligated to do. Actual legal liability must be shown. Id. at 1014 (citing Tugboat Indian Co. v. A/S Ivarans Rederi, 334 Pa. 15, 5 A.2d 153, 156 (1939);Martinique Shoes, Inc. v. N.Y. Progressive Wood Heel Co., 207 Pa. Super. 404, 217 A.2d 781 (1966)). In addition to proving liability for the underlying tort action, the indemnitee must also prove that its liability is secondary, or passive, compared to the primary liability of the indemnitor. Id. (citing Phila. Elec. Co. v. Hercules, Inc., 762 F.2d 303 (3d Cir. 1985)).
2. Contribution
In Pennsylvania, claims for contribution are governed by the Uniform Contribution Among Tortfeasors Act ("UCATA"), 42 Pa. Cons. Stat. Ann. §§ 8321 et seq. The statute provides that the right of contribution exists among joint tortfeasors. 42 Pa. Cons. Stat. Ann. § 8324(a). The term "joint tortfeasor" means "two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them." 42 Pa. Cons. Stat. Ann. § 8322. In contrast to a claim for indemnification, a contribution claim is based on the fact that two or more joint tortfeasors actively committed wrongs that contributed to the injury of another. See McCabe, 77 A.2d at 372. A joint tortfeasor is not entitled to contribution from another joint tortfeasor until he has paid to discharge the common liability or has paid more than his pro rata share. 42 Pa. Cons. Stat. Ann. at § 8324(b). Further, a settling joint tortfeasor may recover contribution from a non-settling joint tortfeasor only if the settlement "extinguished" the liability of the non-settling joint tortfeasor. Id. at § 8324(c).
When settlement occurs before the injured person has proven his original tort claim, the settling tortfeasor cannot enforce his right to contribution unless he proves in a separate proceeding that the party from whom he seeks contribution was in fact a joint tortfeasor and that the settlement amount was reasonable.See Besser Co. v. Paco Corp., 671 F. Supp. 1010, 1015 (W.D. Pa. 1987). Also, if the settling party does not prove that he himself is a joint tortfeasor, he is considered a volunteer and is not entitled to contribution from a non-settling party. See Montgomery County v. Microvote Corp., 320 F.3d 440, 450 (3d Cir. 2003) (citing Charles v. Giant Eagle Markets, 513 Pa. 474, 522 A.2d 1, 2 (Pa. 1987)). A settling tortfeasor must establish his culpability as a joint tortfeasor through adjudication or concession of joint tortfeasor status in the settlement. Id.;see Rocco v. Johns-Manville Corp., 754 F.2d 110, 114-15 (3d Cir. 1985) (acknowledging settling party's joint tortfeasor status because status may be obtained via adjudication or another "reliable means" such as judicial determination or the settling party's concession) (quoting Mazer v. Security Ins. Group, 507 F.2d 1338, 1342 (3d Cir. 1975));Besser Co., 671 F. Supp. at 1015 ("[P]laintiff cannot avoid establishing actual liability by seeking contribution as opposed to indemnity.").
3. Analysis
ExxonMobil must establish O'Mara's actual legal liability to the Nusrein's to proceed on either an indemnification theory or a contribution theory. In the instant motion, ExxonMobil seeks summary judgment on that element only, claiming that O'Mara was in sole possession of the service station when Mr. Nusrein fell and that, consequently, O'Mara is liable for Mr. Nusrein's injuries.
To establish liability for negligence, a plaintiff must establish the following four elements: (1) duty or obligation recognized by the law requiring the actor to conform to a certain standard of conduct; (2) a failure to conform to the standard required; (3) a causal connection between the conduct and the resulting injury; and (4) actual loss or damages resulting to the interests of another. See Bethea v. Bristol Lodge Corp., No. 01-612, 2002 U.S. Dist. LEXIS 24411, at *30 (E.D. Pa. Dec. 19, 2002); Morena v. S. Hills Health Sys., 501 Pa. 634, 642 n. 4, 462 A.2d 680 (Pa. 1983).
The Pennsylvania Supreme Court has expressly adopted the Restatement (Second) of Torts §§ 328, et seq. (1965) to describe the duties of a possessor of land to third parties.See Kirschbaum, 243 F.3d at 152; Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120, 123 (1983). The Restatement defines a possessor of land as:
(a) a person who is in occupation of the land with intent to control it, or (b) a person who has been in occupation of land with intent to control it, if not other person has subsequently occupied it with intent to control it, or (c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b).
Restatement § 328E. The Comment clarifies: "The important thing in the law of torts is the possession, and not whether it is or is not rightful between the possessor and some third person."Id. at cmt. a.
The duty of a possessor of land toward a third party entering the land depends upon whether the entrant is a trespasser, licensee, or invitee. Carrender, 469 A.2d at 123; Updyke v. BP Oil Co., 717 A.2d 546, 549 (Pa.Super. 1998) (discussing status of third parties in gas station slip and fall case). If the third party is an invitee, such as a business visitor, the possessor owes a duty to protect the invitee from foreseeable harm. See Kirschbaum, 243 F.3d at 152; Carrender, 469 A.2d at 123; Restatement §§ 343, 343A. With respect to conditions on the premises that are known to or discoverable by the possessor, the possessor is subject to liability only if he:
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Restatement § 343. A possessor of land is not liable if the dangerous condition on the premises is known or obvious to the invitee. Restatement § 343A; Carrender, 469 A.2d at 123;Atkins v. Urban Redev. Auth. of Pittsburgh, 489 Pa. 344, 414 A.2d 100, 104 (1980) (possessor must have reasonable belief that dangerous condition would be known and obvious to invitee). Thus, a possessor of land is obligated to use reasonable care in discovering and repairing dangerous conditions on his property that would not be known or obvious to invitees. See Kirschbaum, 243 F.3d at 152; Carrender, 469 A.2d at 123; Restatement §§ 343, 343A.
In support of its partial summary judgment motion, ExxonMobil explains that on February 1, 2000, WJL sold its interest in the service station to O'Mara, who took possession of the station. As evidence of O'Mara's possession, ExxonMobil points to O'Mara's deposition where he states that after the second or third week of February 2000, he was running the service station and salting the area and removing ice and snow. See O'Mara Dep. at 31-32 (Docket No. 17, Ex. F). Therefore, ExxonMobil argues, when Mr. Nusrein fell on February 18, O'Mara was liable as the possessor of land
The Court concludes that ExxonMobil has established O'Mara's possession and control of the service station at the time Mr. Nusrein was injured. The Court must still deny ExxonMobil's motion for partial summary judgment, however, because possession is just one element of the many elements ExxonMobil must establish to prove Mr. Nusrein's negligence claim against O'Mara. As the Court explained above, even where an indemnitee settles before the injured person establishes his original tort claim, the indemnitee is required to prove his case against the indemnitor in the same way that the injured person would have been obligated to do. Besser, 671 F. Supp. at 1012 (emphasis added); see also Tugboat Indian Co. v. A/S Ivarans Rederi, 334 Pa. 15, 5 A.2d 153, 156 (1939); Martinique Shoes, Inc. v. N.Y. Progressive Wood Heel Co., 207 Pa. Super. 404, 217 A.2d 781 (1966).
In other words, ExxonMobil must prove not only that O'Mara possessed the land, ExxonMobil must also prove that O'Mara knew or reasonably should have known of the condition, that the condition was not known or obvious to Mr. Nusrein, and that O'Mara did not use reasonable care in trying to remedy the condition. See Kirschbaum, 243 F.3d at 152; Carrender, 469 A.2d at 123; Restatement §§ 343, 343A. Here, O'Mara's deposition indicates that he admits to possession of the service station only. O'Mara does not admit that he acted negligently. Further, ExxonMobil has proffered no evidence of O'Mara's alleged negligence in maintaining the premises nor evidence that the ice Mr. Nusrein allegedly slipped on was not known or obvious to him. ExxonMobil has not even evidenced that there was snow accumulation on the day Mr. Nusrein fell.
In sum, the Court agrees that ExxonMobil has established O'Mara's possession of the service station, however, questions of material fact still remain as to O'Mara's ultimate liability in the Nusrein's underlying negligence action. Accordingly, the Court denies ExxonMobil's motion for partial summary judgment on Count VIII of the Complaint. Likewise, the Court denies WJL's motion for partial summary judgment on O'Mara's cross-claim.
An appropriate Order follows.
ORDER
AND NOW, this day of July, 2004, upon consideration of Plaintiff ExxonMobil Oil Corp.'s Motion for Partial Summary Judgment against Defendant Steven O'Mara (Docket No. 17), Defendant Steven O'Mara's response thereto (Docket No. 23), Defendants WJL Management Enterprises' and William J. Lucchesi's Motion for Partial Summary Judgment as to Defendant Steven O'Mara's Crossclaim (Docket Nos. 18, 19 20), Defendant Steven O'Mara's response (Docket No. 22), WJL Management Enterprises' and William J. Lucchesi's reply thereto (Docket No. 24), and for the reasons stated in the accompanying Memorandum, IT IS HEREBY ORDERED that:(1) ExxonMobil Oil Corp.'s Motion for Partial Summary Judgment is DENIED; and
(2) WJL Management Enterprises' and William J. Lucchesi's Motion for Partial Summary Judgment is DENIED.