Opinion
CIVIL ACTION NO. 15-CV-5436
09-30-2016
LOWELL YOUNG and JOAN YOUNG Plaintiffs v. THE HOME DEPOT U.S.A., INC. d/b/a/ THE HOME DEPOT, and THE HOME DEPOT, INC., d/b/a HOME DEPOT Defendants v. NATE'S ON THE GO CONSTRUCTION, INC. Third Party Defendant
ORDER
AND NOW, this 30th day of September, 2016, upon consideration of the Motion of Third-Party Defendant Nate's On the Go Construction, Inc. for Summary Judgment (Doc. No. 32), it is hereby ORDERED that the Motion is DENIED.
Under Fed. R. Civ. P. 56(a),
A party may move for summary judgment, identifying each claim or defense - or the part of each claim or defense - on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.
BY THE COURT:
s/J. Curtis Joyner
J. CURTIS JOYNER, J.
Under this rule then, summary judgment is appropriate only if there are no genuine issues of material fact such that the movant is entitled to judgment as a matter of law. Erdman v. Nationwide Insurance Co., 582 F.3d 500, 502 (3d Cir. 2009). In considering a motion for summary judgment, the reviewing court should view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Burton v. Teleflex, Inc., 707 F.3d 417, 425 (3d Cir. 2013).
Third-Party Defendant here moves for the entry of judgment in its favor on the grounds that Defendant's claim against it for common law contribution and/or indemnification is barred by Georgia's 8-year Statute of Repose set forth in O.C.G.A. § 9-3-51(a), given that the Independent Contractor Agreement which it executed with Defendant contains a clause choosing Georgia and Georgia law as the proper forum and law to be applied to disputes arising under the agreement. We disagree.
It is true that there is an indemnification provision contained within the Independent Contractor Agreement (hereafter "Agreement") by which Third-Party Defendant agreed to:
indemnify and hold harmless [the Home Depot] and its past, present and future officers, directors, shareholders, employees, agents, and [the Home Depot's] Customers, from any and all death, injuries, losses, theft, claims and damages, and all costs and expenses, including without limitation, attorneys' fees and any other liabilities incurred by [the Home Depot] as a result of any action or omission or alleged act or omission by [Nate's].
Generally speaking, a contract's choice of law provisions do not govern tort claims between contracting parties unless the fair import of the provision embraces all aspects of the legal relationship. Broederdorf v. Bacheler, 129 F. Supp. 2d 182, 191-192 (E.D. Pa. 2015); Jiffy Lube International, Inc. v. Jiffy Lube of Pennsylvania, Inc., 848 F. Supp. 569, 576 (E.D. Pa. 1994), cited with approval in Black Box Corp. v. Markham, No. 03-3910, 2005 U.S. App. LEXIS 3968, 127 Fed. Appx. 22, 25-26 (3d Cir. Mar. 9, 2005). Here, the choice of law clause states:
Governing Law. This is a Georgia contract and shall be construed and enforced and governed by the laws of the State of Georgia, without regard to the conflict of laws principles thereof. Subcontractor agrees that Georgia is the appropriate forum for any disputes related to this Agreement and agrees to submit to the jurisdiction of the courts of Georgia.
This clause is, we find, clear and unambiguous and relates only to any disputes related to the contract itself. Thus, in the event that Home Depot had advanced a claim against Nate's for indemnity or to otherwise have been held harmless pursuant to the indemnification provision in the independent contractor agreement, we would concur with the argument that Georgia law would properly apply, albeit it to that claim alone.
Contribution and indemnity claims, however, may also arise under common law and outside a contractual relationship. See, e.g., Walton v. Avco Corp., 530 Pa. 568, 579, 610 A.2d 454, 460 (1992)("Unlike comparative negligence and contribution, the common law right of indemnity is not a fault sharing mechanism between one who was predominantly responsible for an accident and one whose negligence was relatively minor. Rather, it is a fault shifting mechanism, operable only when a defendant who has been liable to a plaintiff solely by operation of law, seeks to recover his loss from a defendant who was actually responsible for the accident which occasioned the loss"); Brown v. Dickey, 397 Pa. 454, 459, 155 A.2d 836, 838 (1959)("The right to contribution is an equitable right based on a common liability to the plaintiff"); Bird Hill Farms, Inc. v. United States Cargo & Courier Service, Inc., 2004 PA Super 66, 845 A.2d 900 (Pa. Super. 2004)("Contribution is appropriate when one party pays more than their proper share of a common liability"). To be sure,
"under Pennsylvania law, indemnity is available only (1) where there is an express contract to indemnify, or (2) where the party seeking indemnity is vicariously or secondarily liable for the indemnitor's acts. ... If there is no express contract to indemnify, then the party seeking indemnity must rely on the second option - common law indemnification. ... Common law indemnification is appropriate when a defendant's liability arises not out of its own conduct, but out of a relationship that legally compels the defendant to pay for the act or omission of a third party..."Bank v. City of Philadelphia, 991 F.Supp.2d 523, 530 (E.D. Pa. 2014)(quoting, inter alia, Allegheny Gen. Hosp. v. Philip Morris, Inc., 228 F.3d 429, 448 (3d Cir. 2000); Morris v. Lenihan, 192 F.R.D. 484, 489 (E.D. Pa. 2000)).
Here, the Third Party Complaint contains one count seeking "common law contribution and/or indemnification" and alleging that "Plaintiffs' damages, if any, were caused by Nate's" and thus "Nate's is liable to Home Depot for contribution and/or indemnification for any damages that Home Depot is held liable to Plaintiffs based on the allegations in the Complaint which ... are strictly denied by Home Depot." Inasmuch as there is evidence on the record in this matter that Nate's installation of the siding on Plaintiffs' residence may have been done negligently and/or improperly with the result that Plaintiffs' home was damaged, the instant motion for summary judgment is denied.