MARK WHITMORE et al. v. JEANINE WHITMORE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3756-04T33756-04T3

MARK WHITMORE and

JEANINE WHITMORE,

Plaintiffs-Respondents,

v.

BEST BUY STORES,

Defendant-Respondent,

and

TRI-RIVER DESIGN & CONSTRUCTION,

Defendant-Appellant,

and

GABRELLIAN ASSOCIATES, MIDSTATE

HYE NJ, LLP,

Defendants.

_______________________________________

 

Submitted November 15, 2005 - Decided

Before Judges Axelrad and Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-5081-03.

McDonnell & Associates, attorneys for appellant (Patrick J. McDonnell and David M. Koller, on the brief).

Stein, McGuire, Pantages & Gigl, attorneys for respondent Best Buy Stores (Adam T. Adams, on the brief).

Davis, Saperstein & Salomon, attorneys for respondents Mark Whitmore and Jeanine Whitmore, joins in the brief of respondent Best Buy Stores.

PER CURIAM

Defendant Tri-River Design and Construction appeals from an order granting summary judgment to defendant Best Buy Stores on its cross-claim for contractual indemnification and defense. Tri-River also appeals from an order awarding counsel fees to Best Buy. Because judgment was entered before Tri-River had completed discovery, the judgment is reversed and the matter is remanded.

Tri-River was the general contractor hired by Best Buy to construct a new store in East Brunswick on property owned by Midstate Hye NJ, L.P., Best Buy's landlord. The contract contemplated substantial completion of construction by September 6, 2002. The term "substantial completion" was defined as completion of all contract work and the procurement of all governing agency approvals permitting the owner to fixture its store, except for electrical work associated with Best Buy's installation of store fixtures and punch list items associated with owner's installation of fixtures in the premises.

Turnover was to occur no later than October 4, 2002. "Turnover" was defined as completion of all work including punch list work associated with the installation of fixtures, and procurement of a Certificate of Occupancy, if required, to allow Best Buy to commence stocking shelves and training store personnel.

Final completion was scheduled for November 1, 2002, and was defined as the completion of all work, including any authorized changes in the work which occurred during Best Buy's stocking of the shelves. It also included any governmental requirements, such as a permanent Certificate of Occupancy, necessary to allow the store to open for business.

The contract provided for Tri-River to indemnify Best Buy:

The Contractor shall indemnify and hold harmless [Best Buy] . . . from and against all claims, damages, losses, and expenses including attorney's fees arising on account of loss, claims, damages and expense . . . because of bodily injury . . . sustained by any person . . . arising out of, resulting by or for Contractor in the course of fulfillment of Contractor's obligations under this Contract . . ., excluding, however, damage, loss, destruction or injury caused solely by [Best Buy's] . . . own negligence. . . .

Plaintiff Mark Whitmore was employed by Avaya, Inc., which had been hired by Best Buy to install computer lines in conjunction with the installation of fixtures. Those lines were run from the phone board in a wire-mesh cage inside the stockroom through trenches in the concrete slab floor. On October 7, 2002, Whitmore arrived at the store in the morning. Avaya's work had been completed and he was there to do a walk through to verify that all work was done so that Avaya could issue a final bill to Best Buy.

Mark Kelley, the Tri-River supervisor, testified in deposition that first thing that morning he had inspected the stockroom and had repositioned a sheet of plywood that had been laid on the floor over the trench so that no one would accidentally step into the trench. When Whitmore went into the stockroom, the trench in front of the phone board was no longer covered and he stepped into it and was injured. This lawsuit followed.

Mark Kelley testified that he had been assigned to the job in August or September of 2002 and that, when he first arrived at the job, Best Buy was installing fixtures and stock was arriving. Carpeting and tile was being laid by Tri-River's subcontractors. The only other contractors on the job were ones hired by Best Buy, such as the sound communication people, with whom Tri-River had no involvement. Kelley acknowledged that he was responsible for job site safety for the entire store, but was not certain about his responsibility for Best Buy subcontractors. The contract provided that:

The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions for the safety of, and shall provide all reasonable protection to prevent damage, injury or loss to (1) all employees on the project site and other persons who may be affected thereby . . . .

Kelley testified that by the time Whitmore was injured, Best Buy had already taken over the store and was stocking the shelves. He testified that he gave them a certificate of occupancy before they began bringing in employees to stock the shelves, as he testified was required by East Brunswick code, but he could not recall the specific date. However, he was certain that as of October 7, 2002, Tri-River had only two or three employees who were repairing carpeting or tile that had been damaged by Best Buy's employees or subcontractors while the store was being stocked. Although he was not familiar with the contract between Best Buy and Tri-River, it was his understanding that Tri-River's responsibility for the job ended with the issuance of the certificate of occupancy and that Tri-River would then cancel the insurance it was contractually required to provide to Best Buy. He was quite definite that the certificate of occupancy had already been issued prior to the time that Whitmore was injured and that Tri-River no longer had any subcontractors on the job. Kelley remained at the store until the grand opening, but he did not recall the date.

Best Buy moved for summary judgment dismissing plaintiffs' complaint and compelling Tri-River to indemnify it for the cost of defense. Plaintiffs did not oppose the dismissal of their complaint against Best Buy, but Tri-River did oppose the relief sought as well as the motion for summary judgment. Tri-River also cross-moved to compel the deposition of a representative of Best Buy, who had never submitted to a deposition despite outstanding requests for that discovery. It also sought to take the deposition of Christa Couper, the Best Buy store manager at the time of Whitmore's accident. Despite repeated requests for her deposition, it was not until after the motion for summary judgment was filed that Best Buy advised Tri-River that Couper was no longer employed by it. In addition, Best Buy failed to identify its other employees and the subcontractor's employees who were present at the time of Whitmore's accident.

In response to the cross-motion, Best Buy amended its interrogatory answers to produce a temporary certificate of occupancy issued on October 31, 2002, and supplied same to the court, arguing that turnover could not have occurred until that date. Best Buy argued that there was no question that at the time this accident happened the work location was still under the exclusive control of Tri-River. In contrast, Tri-River argued that there was still a question as to who precisely was in control of the premises.

Tri-River relied on the testimony of Kelley that Tri-River had turned the store over to Best Buy before the date of Whitmore's accident. It pointed out that Whitmore testified that there was stock present at the store and that Best Buy employees were going around the store with spray bottles cleaning up and getting ready for the store's grand opening. Whitmore also testified that there was no visible construction going on at the site on the date of the accident. Tri-River further argued that there was a conflict between the certificate of occupancy, the contract turnover date, and the testimony of Kelley and Whitmore. Tri-River urged the court to permit him to complete discovery so that they could ascertain how many Best Buy employees were on the site and, presumably, determine the actual date of turnover.

The court, however, concluded that the depositions of Best Buy employees "would [not] yield evidence that would enable a rational fact finder to conclude that Best Buy was negligent in causing the plaintiff's injuries." The court also concluded that because "Best Buy was not solely negligent in allegedly causing the plaintiff's injuries," Tri-River was obligated to defend and indemnify Best Buy.

The summary judgment rule limits grants of summary judgment to cases where "there is no genuine issue as to any material fact challenged." R. 4:46-2(c). In considering a motion for summary judgment, the trial court is required to view the facts in the light most favorable to the opposing party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). In addition, the court is required to draw all inferences in favor of the opposing party. Id. at 536. Generally, summary judgment is inappropriate where discovery has not been completed. Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193 (1988). See also, Crippen v. Central Jersey Concrete Pipe Co., 176 N.J. 397, 409 (2003); Driscoll Const. Co. v. N.J. Dep't of Transp., 371 N.J. Super. 304, 317 (App. Div. 2004); James v. Chevron U.S.A., Inc., 301 N.J. Super. 512, 542 (App. Div. 1997), aff'd and remanded sub nom. James v. Bessemer Processing Co., 155 N.J. 279 (1998); and J. Josephson, Inc. v. Crum & Forster Ins. Co., 293 N.J. Super. 170, 202-03 (App. Div. 1996).

Pivotal to the issue of liability in this case is the actual date of turnover. If Best Buy was in control of the premises, it had a nondelegable duty to Whitmore to use reasonable care to protect him against known or reasonably discoverable dangers. Pfenninger v. Hunterdon Cent. Reg'l High Sch., 338 N.J. Super. 572, 581 (App. Div. 1999), aff'd, 167 N.J. 230 (2001). This rule protects individuals performing work on the premises of the landowner, most commonly independent contractors and their employees. Accardi v. Enviro-Pak Sys. Co., Inc., 317 N.J. Super. 457, 462 (App. Div.), certif. denied, 158 N.J. 685 (1999).

Certainly, the date of the temporary certificate of occupancy is inconsistent with some of Kelley's testimony. We do not know whether Kelley was correct when he said that turnover occurred before the accident or whether he was correct when he said turnover occurred after the issuance of the temporary certificate of occupancy. Because discovery was not complete, we do not know if the Best Buy employees would corroborate Kelley's testimony that the store had been turned over to Best Buy before Whitmore's accident. It is certainly within the realm of possibility that the issuance of the temporary certificate of occupancy was delayed for some reason, but that turnover nonetheless occurred on or close to schedule.

The trial court contravened the standards for a grant of summary judgment by resolving this dispute against Tri-River and in favor of Best Buy. The judge's conclusion that turnover occurred after the accident was reached despite the presence of a genuine dispute of fact as to the date of turnover. As a consequence, the defense-and-indemnification judgment in favor of Best Buy and against Tri-River is reversed, as is the dismissal of Tri-River's cross-claims against Best Buy. Accordingly, the award of counsel fees is vacated without prejudice.

 
Remanded.

Because the entire contract was not supplied to the court on appeal, it is not known if the term "employees" is a term of art specifically defined in the contract.

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A-3756-04T3

December 14, 2005