JACQUELINE POROWSKI, et al. v. REGENCY HOLDINGS, INC., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5516-04T55516-04T5

JACQUELINE POROWSKI and

ROBERT POROWSKI,

husband and wife,

Plaintiffs,

v.

REGENCY HOLDINGS, INC.,

Defendant-Appellant,

and

THYSSENKRUPP ELEVATOR f/k/a

THYSSEN DOVER ELEVATOR,

Defendant-Respondent.

__________________________________

 

Submitted March 13, 2006 - Decided

Before Judges Lintner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1789-02.

Judith A. Heim, attorneys for appellant (Joseph F. Skinner, on the brief).

McElroy, Deutsch, Mulvaney & Carpenter, attorneys for respondent (Edward J. DePascale of counsel and on the brief; Sandra D. Lovell, on the brief).

PER CURIAM

Defendant, Regency Holdings, Inc. (Regency), appeals from the order of the Law Division entered on May 13, 2005: 1) directing that it indemnify co-defendant, Thyssenkrupp Elevator f/k/a Thyssen Dover Elevator (Thyssenkrupp) for all damages incurred by Thyssenkrupp in defending and settling the personal injury claim of plaintiff, Jacqueline Porowski, including reasonable attorney fees and costs, pursuant to an agreement to provide elevator maintenance services (agreement); and 2) determining that it breached the agreement by failing to name Thyssenkrupp as an additional insured on Regency's liability insurance policy. We affirm.

On February 18, 2000, plaintiff fell as she exited an elevator in an office building at 1 527 Route 27, Somerset, owned by Regency. Thyssenkrupp maintained the building's elevator pursuant to the agreement previously entered into between Regency as owner and Dover Elevator Company (Dover), Thyssenkrupp's predecessor. Contending that the elevator misleveled approximately six inches above the floor, causing her to trip and fall as she exited, plaintiff filed suit against Regency and Thyssenkrupp alleging that both were negligent in the operation and maintenance of the elevator. Prior to trial, Thyssenkrupp filed a motion for summary judgment seeking contractual indemnification from Regency pursuant to the terms of the agreement, and damages for Regency's failure to name Thyssenkrupp as an additional insured on Regency's liability insurance policy. The motion was deferred pending conclusion of trial. Thyssenkrupp settled with plaintiff for $50,000, and plaintiff continued her claim against Regency with the jury returning a verdict of no cause of action, determining Regency not negligent. On May 13, 2005, Judge LeBlon decided the motion in favor of Thyssenkrupp, determining that it was entitled to full indemnification from Regency under the agreement's indemnification provision and for breach of the provision requiring Regency to name Thyssenkrupp as an additional insured on Regency's liability insurance policy. Judgment was entered on the cross-claim in favor of Thyssenkrupp in the amount of $63,813.35 representing indemnification for the $50,000 settlement and $13,813.35 attorney fees and costs.

On appeal, Regency argues:

POINT I.

THE COURT ERRED IN GRANTING THYSSENKRUPP ELEVATOR FULL CONTRACTUAL INDEMNIFICATION AS THE CONTRACT AT ISSUE DID NOT EXPRESS[]LY STATE THAT THYSSENKRUPP WAS TO BE INDEMNIFIED FOR ITS NEGLIGENT MAINTENANCE OF THE ELEVATOR IN THE BUILDING OWNED BY REGENCY HOLDINGS, INC.

POINT II.

SINCE THE INDEMNITY AND ADDITIONAL INSURANCE PROVISIONS OF THE CONTRACT ARE NOT CLEAR AND UNEQUIVOCAL, THE COURT SHOULD HAVE DENIED DEFENDANT THYSSENKRUPP[']S MOTION TO ENFORCE THE THESE (SIC) PROVISIONS.

A trial court will grant summary judgment to the moving party "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 challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2006). "We employ the same standard that governs trial courts in reviewing summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

After carefully considering the record and the briefs, we are satisfied that Regency's arguments are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We affirm substantially for the reasons expressed by Judge LeBlon in his oral opinion delivered on May 13, 2005. We add the following.

The agreement provides in pertinent part as follows:

DOVER ELEVATOR COMPANY shall not be held responsible nor shall it be liable under the terms of this contract and Purchaser [Regency] expressly releases, discharges, and acquits DOVER ELEVATOR COMPANY and Purchaser expressly agrees to remain liable for any and all claims for loss, damage, delay, detention, death or injury, of any person, entity or property while riding on, being in or about the elevator(s) which are subject to this contract, or the associated areas, regardless of whether such actions arise from the use, operation, installation or condition of the elevator(s), machine room(s), hatchways(s), or any of their component parts. Claims expressly covered by this agreement include those made by the Purchaser, its successors, heirs, assigns, agents, and employees as well as those made by any other person or entity whatsoever claiming against DOVER ELEVATOR COMPANY. The types of claims expressly covered by this agreement include but are not limited to any loss, damage, injury, death, delay, or detention to persons, entities, or property caused by any acts of Government, civil or military authorities, war, civil commotion, theft, vandalism, strikes, lockouts, explosion, fire, power failure, water damage, storms, lightning, earthquake, natural or public catastrophe, acts of God, obsolescence, misuse of equipment, design of equipment, installation of equipment and the associated areas surrounding such equipment[,] regardless of whether such claims arise out of the joint or sole, negligent acts or omissions of DOVER ELEVATOR COMPANY, its officers, agents or employees or any other cause whatsoever. Purchaser expressly agrees to name DOVER ELEVATOR COMPANY as an additional insured under their general liability and excess (umbrella) insurance policies for the claims set out above.

One percent of the contract price represents specific consideration for which the Purchaser expressly agrees to the above and further agrees to indemnify, defend and save harmless DOVER ELEVATOR COMPANY from and against any and all liability, costs, expenses, judgment awards, interest, attorney's fees or any other damages which may be sustained by or imposed by law on DOVER ELEVATOR COMPANY as a result of any and all such claims or actions against DOVER ELEVATOR COMPANY, including but not limited to the claims or actions discussed above regardless of whether such claims arise out of the joint or sole negligent acts or omissions of DOVER ELEVATOR COMPANY, its officers, agents or employees or any other cause whatsoever. Purchaser hereby waives the right of subrogation.

Regency argues that because the indemnification provision does not expressly state that Regency will indemnify and defend Thyssenkrupp for Thyssenkrupp's negligent maintenance of the elevator located in the building, the indemnification provision is not enforceable. We disagree. The indemnification agreement is not limited only to those claims specified in the indemnification provision. The language of the provision states: "The types of claims expressively covered by this agreement include but are not limited to . . . . " We conclude that the provision covers the claim of plaintiff, i.e., a personal injury claim caused by negligent maintenance of the elevator.

Regency also argues that the indemnification provision is not enforceable because it does not clearly and unambiguously reflect the parties' intention that Regency indemnify Thyssenkrupp for Thyssenkrupp's own negligence. Azurak v. Corporate Prop. Investors, 175 N.J. 110, 112-13 (2003); Mantilla v. NC Mall Assocs., 167 N.J. 262, 272-73 (2001); Ramos v. Browning Ferris Indus. of S. Jersey, Inc., 103 N.J. 177, 191 (1986). We conclude otherwise. The agreement provides for indemnification "regardless of whether such claims arise out of the joint or sole negligent acts or omissions of [Thyssenkrupp]." (emphasis added). The language conforms with Azurak, Mantilla, and Ramos.

Regency argues that the judge erred in granting Thyssenkrupp's motion for breach of contract by Regency failing to name Thyssenkrupp as an additional insured on Regency's liability policy. Regency contends that its undertaking to name Thyssenkrupp as an additional insured must be coextensive with the scope of its obligation to indemnify under the agreement. Regency asserts that because the agreement does specify that it covers claims based on negligent maintenance for the particular elevator, that it had no obligation to adhere to the agreement to name Regency as an additional insured, citing Pennsville Shopping Center Corp. v. American Motorists Insurance Co., 315 N.J. Super. 519 (App. Div. 1998), certif. denied, 157 N.J. 647 (1999).

Regency's reliance upon Pennsville is misplaced. Pennsville concerned construction of an insurance policy, not the underlying agreement of the parties requiring insurance coverage. Moreover, in Pennsville, the landlord-indemnitee had expressly agreed in the lease agreement to assume sole responsibility and liability for damages resulting from its failure to maintain the common areas, which was the basis of the injured party's lawsuit. Id. at 521. The court held that it would not require insurance coverage contrary to the parties' intentions expressed in the underlying lease agreement. Id. at 523. Here, as stated previously, Regency is liable under the indemnification agreement. Therefore, contrary to Pennsville, Regency's obligation to name Thyssenkrupp as an additional insured on Regency's liability policy is consistent with the overall contractual indemnification agreement between the parties.

Affirmed.

 

As Jacqueline Porowski suffered the injuries for which she seeks damages, we refer to her as plaintiff. Plaintiff's husband, Robert Porowski, sued per quod.

(continued)

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A-5516-04T5

MAY 3, 2006