KEITH SELBY v. NEW CARSON HILLS LIMITED PARTNERSHIP a/k/a SUMMIT ASSOCIATES and NEW CARSUN HILLS LP (incorrectly designated as New Carson Hill LP and SUMMIT ASSOCIATES Defendants/Third-Party v. CREST-FOAM, INC Third-Party Defendant

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3105-07T23105-07T2

KEITH SELBY,

Plaintiff,

v.

NEW CARSON HILLS LIMITED

PARTNERSHIP a/k/a SUMMIT

ASSOCIATES,

Defendant,

and

NEW CARSUN HILLS LP (incorrectly

designated as New Carson Hill LP)

and SUMMIT ASSOCIATES,

Defendants/Third-Party

Plaintiffs-Appellants,

v.

CREST-FOAM, INC.,

Third-Party Defendant-

Respondent.

__________________________________

 

Submitted December 8, 2008 Decided

Before Judges Lisa and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9207-05.

Law Offices of Sherman & Viscomi, attorneys for appellants (Frank A. Viscomi, on the brief).

Margolis Edelstein, attorneys for respondent (Emery J. Mishky and Adrienne Matthews, on the brief).

PER CURIAM

On January 1, 1975, third-party defendant Crest-Foam, Inc., (Crest-Foam), a wholly owned subsidiary of Leggett and Platt, Inc., entered into a lease agreement as to 521 Sunfield Avenue in Edison (the premises) with Peddie Buildings, the predecessor in interest to defendants New Carsun Hills, L.P., and/or Summit Associates (New Carsun/Summit), the current owners. That agreement, which is still in full force and effect as between Crest-Foam and New Carsun/Summit, includes a certain indemnification provision at issue in this suit. For the reasons that follow, we affirm Judge Rodriguez's decision to award summary judgment, based on his reading of that provision, to Crest-Foam dismissing the third-party complaint filed against it by New Carsun/Summit.

On February 5, 2004, plaintiff Keith Selby, an employee of Crest-Foam, fell and was injured on a concrete walkway outside the maintenance entry of the building on the premises. As a result of the injury, plaintiff received Workers' Compensation benefits from Leggett and Platt. In his personal injury action against New Carsun/Summit, plaintiff alleged that its negligent maintenance of the premises was the proximate cause of the fall and resulting injuries. New Carsun/Summit filed a third-party complaint against Crest-Foam seeking indemnification pursuant to paragraph eight of the 1975 lease agreement.

On November 2, 2007, after oral argument on Crest-Foam's summary judgment motion and New Carsun/Summit's cross-motion, Judge Rodriguez dismissed the third-party complaint with prejudice. New Carsun/Summit thereafter settled the claim with plaintiff, reserving the right to appeal the award of summary judgment.

Paragraph eight of the 1975 lease agreement states:

The landlord shall not be responsible for the loss of or damage to property, or injury to persons, occurring in or about the demised premises, by reason of any existing or future condition, defect, matter or thing in said demised premises or the property of which the premises are a part, or for the acts, omissions or negligence of other persons or tenants in and about the said property. The tenant agrees to indemnify and save the landlord harmless from all claims and liability for losses of or damage to property or injuries to persons occurring in or about the demised premises.

Similar clauses have been found to be ambiguous and are strictly construed against the indemnitee. See, e.g., Mantilla v. NC Mall Assocs., 167 N.J. 262, 272 (2001); Ramos v. Browning Ferris Indus., Inc., 103 N.J. 177, 191 (1986). Unless the indemnity provision clearly and unequivocally references losses resulting from the negligence of the indemnitee, it will not be enforced as to such losses. Mantilla, supra, 167 N.J. at 272-73. In other words, the language of the purported indemnity clause must specifically include indemnification against the indemnitee's own acts of negligence in order to be construed as unambiguous. Azurak v. Corp. Prop. Investors, 175 N.J. 110, 112-13 (2003). "Ordinarily, a party who is at fault may not obtain indemnification for its own acts." Ramos, supra, 103 N.J. at 190.

Furthermore, given the ambiguous nature of the clause in this case, Judge Rodriguez found that New Carsun/Summit could not overcome the preclusion extended to Crest-Foam by the Workers' Compensation Act, N.J.S.A. 35:15-1 to -128. See N.J.S.A. 34:15-8. The Act provides an employee with an exclusive remedy against an employer for work-related injuries that he or she sustains. Ramos, supra, 103 N.J. at 183. Pursuant to the exclusive-remedy provision of the Act, an employee cannot pursue a claim against the employer even where its concurring negligence contributed to the injury. N.J.S.A. 34:15-8.

New Carsun/Summit contends, nonetheless, that the judge erred in finding that the ambiguous indemnification clause did not overcome the Workers' Compensation bar. As has been previously stated, it was "[t]he unmistakable intention of the Legislature . . . that the sole liability of an employer for a work-related injury of an employee was that provided in the Act." Ramos, supra, 103 N.J. at 188. Simply stated, although the Act does not prevent an employer from assuming the contractual duty to indemnify a third-party by way of express agreement, the language that would otherwise make an employer liable must be unambiguous and strictly construed against the indemnitee. Id. at 191. In this case, there is nothing in the language of the indemnification provision that overcomes the bar.

Pursuant to Rule 4:46-2(c), summary judgment must be granted 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." Our review is de novo, and we apply the Brill standard, under which the relevant question is whether the evidence, when viewed in the light most favorable to the non-moving party, would permit a rational factfinder to resolve the dispute in the non-moving party's favor. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). In this case, summary judgment was properly granted as no rational factfinder could resolve the dispute in favor of New Carsun/Summit in light of the strictures contained in Ramos.

 
Affirmed.

(continued)

(continued)

6

A-3105-07T2

March 2, 2009