RAFAEL DIAZ v. M&M LOUIE HOLDINGS, LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0639-09T20639-09T2

RAFAEL DIAZ,

Plaintiff,

v.

M&M LOUIE HOLDINGS, LLC, MICHAEL KUKOFF, JAY KUKOFF, and KUKOFF INDUSTRIES, INC.,

Defendants,

and

M&M LOUIE HOLDINGS, LLC, MICHAEL KUKOFF, and JAY KUKOFF,

Third-Party Plaintiffs- Respondents,

v.

HEADWEAR CREATIONS, INC.,

Third-Party Defendant-

Appellant.

________________________________

 

Submitted: May 19, 2010 - Decided:

Before Judges C.L. Miniman and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6304-07.

Law Office of Craig M. Terkowitz, attorneys for appellant (Andrew M. Horun, on the brief).

Sweet Pasquarelli, P.C., attorneys for respondents (Josephine M. DiCosmo, on the brief).

PER CURIAM

Third-party defendant Headwear Creations, Inc. (the tenant), appeals from a December 19, 2008, order requiring it to defend and indemnify third-party plaintiff M&M Louie Holdings, LLC (the landlord), with respect to all claims made by plaintiff Rafael Diaz, an employee of the tenant, arising from a May 26, 2006, defective condition in the parking lot for the premises leased in part to the tenant. Because the October 1, 1996, lease did not specify that the ten ant would defend and indemnify the land lord with respect to the landlord's own negligence, Azurak v. Corporate Property Investors, 175 N.J. 110, 112-13 (2003), we now reverse.

An abandoned well was under the landlord's paved parking lot, and on or before May 26, 2006, the well cover became dis lodged. Plaintiff, accustomed to traversing the lot, failed to notice the uncovered well and stepped into it. He suffered a serious knee injury. Plaintiff filed suit on August 3, 2007. The landlord and its principals, Michael Kukoff and Jay Kukoff (the Kukoffs), answered the complaint on October 3, 2007, and cross-claimed against defendant Kukoff Industries, Inc., the landlord named on the lease, for contribution and indemnification.

On November 9, 2007, the landlord and the Kukoffs filed a third-party com plaint against the tenant, alleging that the ten ant agreed in the lease to hold them harmless and indemnify them "for any and all claims such as that of the plaintiff that may be made against them." In addition, they alleged that the ten ant had breached the lease by failing to procure liabil ity insur ance naming the landlord and the Kukoffs as additional insureds and asserted that they were damaged as a result. The third-party complaint was served on December 19, 2007.

The leased premises were "APPROXIMATELY 11,000 SQUARE FEET IN THE TOP FLOOR OF THE BUILDING LOCATED AT 200 WRIGHT STREET, NEWARK, NJ, PLUS THE EXISTING TRAILER WITH PARKING FOR TRAILER AND TENANT[']S EMPLOYEES." The lease was between the tenant and defendant Kukoff Industries, Inc., as the landlord. Paragraph twenty-seven of the lease provided:

The Tenant, at Tenant's own cost and expense, shall obtain or provide and keep in full force for the benefit of the Landlord and Tenant during the term hereof, general public liability insurance, insuring the Landlord and Tenant against any and all liability or claims of liability arising out of, occasioned by or resulting from any acci dent or otherwise in or about the leased premises, for injuries to any person or per sons, for limits of not less than $1,000,000.00 for injuries to one person and $1,000,000.00 for injuries to more than one person, in any one accident or occurrence, and for loss or damage to the property of any person or persons, for not less than $50,000.00. . . . The Tenant also agrees to and shall save, hold and keep harmless and indemnify the Landlord from and for any and all payments, expenses, costs, attorney fees and from and for any and all claims and liability for losses or damage to property or injuries to persons occasioned wholly or in part by or resulting from any acts or omissions by the Tenant or the Tenant's agents, employees, guests, licensees, invit ees, subtenants, assignees or successors or for any cause or reason whatsoever arising out of or by reason of the occupancy by the Tenant and the conduct of the Tenant's business. . . .

The insurance policy procured by the tenant that covered the date of plaintiff's accident listed defendant Kukoff Indus tries, Inc., as the additional insured; it complied with the requisite level of coverage.

When no answer was forthcoming from the tenant, the land lord and the Kukoffs sought entry of default on February 20, 2008. This pro voked the tenant's answer on March 19, 2008. During discovery, Rubin Spitz, the tenant's owner, testified that his busi ness had occupied the landlord's premises since 1987. He identified the lease effective on October 1, 1996, between defendant Kukoff Industries, Inc., and his company. He stated he had not read the lease, but turned it over to his accountant to review and implement. His wife, who was the president at the time, signed the lease and the rider to it. He believed the 1996 five-year lease had been renewed for another five years.

Defendant Jay Kukoff testified there must have been a renewal of the 1996 lease, because Spitz "has been a tenant for so long." He also tes tified that the tenant always made the check payable to M&M Louie "for the last, got to be, I don't know, ten years maybe, if I'm right, I could be wrong, but they've always paid M&M Louie and it's always been known that, you know, it's M&M Louie that they're leasing the property from." He admitted he could not locate the lease in effect on the date of the accident.

Discovery ended on November 12, 2008, and the tenant moved on November 17, 2008, to dismiss the third-party complaint with prejudice. The landlord and the Kukoffs cross-moved for summary judgment seek ing reformation of the lease and an order compel ling the tenant to indemnify them with respect to plaintiff's claims.

The motions were argued on December 19, 2008. The judge clearly had a greater record before him than has been provided to us based on his description of the facts and the parties' arguments:

And what brings this to court, it looks like Jay Kukoff . . . testified that, in reality Kukoff Industries really wasn't even in business any longer, and he related that 200 [Wright] Street [was], basically, owned by him, and his brother in a couple of dif ferent names, and corporate entities, but it was really owned by M&M Louie Holdings since well before the accident date, and before the policy really came into effect back in 1987, which was prior to the dating, and execution of the [tenant's] lease.

M&M Louie Holdings was thus, in their opinion, the true owner of the property on the date that [plaintiff] fell.

The tenant['s] . . . position is that the third[-]party complaint against the third[-]party defendant is improper . . . because M&M Louie Holdings never entered . . . the lease agreement. They don't have any standing, and the lease, basically, was with Kukoff Industries, and that there are no contrac tual rights that bind the parties, and that's what they file in their motion, and that, accordingly, that the third[-] party plaintiffs have no right to a defense, and an indemnification at this point from [the tenant].

And then we had a motion from the Kukoff brothers, and M&M Louie, and it says that the lease contained a provision requir ing [the tenant] to insure the landlord without spelling out who the landlord was. [T]he was the . . . definitive word, land lord, and hold the landlord harmless, and indemnify the landlord for any cause, or reason whatsoever arising out of or by reason of the occupancy by the tenant, and the conduct of the tenant's business, and if valid this clause would apply here as the plaintiff was an employee of [the tenant] who got hurt going to work at 200 [Wright] [S]treet, and so it would fall under that lease provision.

Their position is that mistakenly the name of Kukoff Industries, a defunct corpo ration was on the lease instead of the real, correct name M&M Louie Holdings, and that . . . the parties know each other, because they've been paying rent to each other for ten years, and he knows, and some of the checks are being actually made out to M&M Louie Holdings. So, at a minimum, the ten ant knew the right name of . . . the land lord, and . . . there was a mistake by not just updating the policy to reflect the correct information.

And, finally, the Hanover's [I]nsurance [C]ompany, which is the company which pro vides the policy to cover the premises[,] was paid an additional premium . . . with the landlord []as an additional insured and, therefore, they'd be getting a windfall because, I guess, [they're] insur[ing] somebody that doesn't even exist anymore.

The tenant's attorney pointed out that Spitz testified that he remembered making payments to Kukoff and that there came a point in time where there was a different entity to which pay ments were made, but that did not prove there was a new landlord because they could have been making payments to a management company. He argued that the judge could not reform the lease without reforming the insurance policy because such a reforma tion would reform the tenant into being in breach of the lease from the beginning. Because the insurance company was not a party to the action, reformation was an improper remedy at that time. He further argued that the indemnification clause ran afoul of the Azurak holding.

Counsel to the landlord and the Kukoffs urged that plain tiff was the ten ant's employee and his accident arose out of the use and occu pancy of the premises. He argued that the inten tions of the parties to the lease were clear that the landlord would be indemnified and the tenant knew that because it obtained insur ance naming Kukoff Industries as an additional insured, and the policy provided for contractual liability cov erage. The identi fication of Kukoff Industries as the landlord was unquestionably a mistake because it never owned the prop erty, but was merely a former tenant at 200 Wright Street. He asserted that there had been a mutual mistake entitling the landlord to reformation of the lease. He urged there would be no prejudice to the tenant because it had contractual liability coverage, which would insure it for the loss.

The tenant argued that there was no evidence of a mutual mistake and that the landlord and the Kukoffs should not obtain a benefit now when they failed to amend the lease after it was executed. The landlord and the Kukoffs asserted that Azurak did not control. The judge ruled:

All right. Guys, I am going to deny this summary judgment request by [the ten ant], and I am going to grant the motion by M&M Louie Holdings to reform the lease. There is no other intention that can be gleaned from the lease agreement, other than that [the tenant] was to hold the landlord harmless. The wrong name was put on the lease. That does not nullify the duties, and obligations between the parties, and I'm going to reform the . . . lease agreement to reflect the correct intention of the par ties, and so, therefore, Hanover is back into the case, and we'll see what happens.

The judge entered an order on December 19, 2008, reforming the lease "to reflect the correct identity of the landlord" and requiring the tenant to "defend and indemnify . . . [the] owner of the subject premises."

On January 14, 2009, the tenant sought reconsideration of the "December 19, 2008 Order." In ruling on the motion, the judge noted,

It is [the tenant's] position that M&M is not entitled to defense, and indemnifica tion from [the tenant] under the lease for plaintiff's alleged injuries, which occurred in M&M Louie's common parking lot area, because the indemnification clause of the lease agreement did not specifically refer ence the negligence or fault of the indem nit[ee], that's M&M Louie Holding as required by a case[,] Azurak v. Corporate Property Investors, 175 N.J. 110.

The judge found that it was "crystal clear that, indeed, the accident in question did arise from the occupancy by the tenant, and the conduct of the tenant's business," thus falling within the scope of the final phrase of 27 of the lease. He distinguished Azurak on the ground that the indemni tor there was a mall contractor, not a tenant, and the indemni fication clause did not "express an intention in non-equivocal terms that the indemnitor would . . . indemnify the indemnitee against losses resulting from the indemnitee's own negligence." The judge found the subject clause clearly encompassed the neg ligence of the landlord with the phrase "by reason of the occu pancy by the tenant, and the conduct of the tenant's business." Furthermore, the lease required the tenant to name the landlord as an additional insured under its policy. He concluded, "The tenant . . . is thus obligated, either through its own resources, or by vir tue of coverage provided by its carrier, [t]he Hanover Insurance Company, to defend, and indemnify the landlord for this accident." An order denying the motion was entered on February 6, 2009.

On September 4, 2009, after the tenant's insurer settled plaintiff's claims, the parties consented to a judgment against the tenant in favor of the landlord in the amount of $9000 for costs and attorneys fees. The order required the tenant's insurer to pay said sum into court pending exhaustion of the tenant's rights of appeal. This appeal followed.

In reviewing a ruling on a summary-judgment motion, we apply the same standard as that governing the trial court. Lib erty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998); Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989).

Summary judgment is designed to provide a prompt, business like and inexpensive method of resolving cases. Judson v. Peo ples Bank & Trust Co. of Westfield, 17 N.J. 67, 74 (1954). Sum mary judgment is appropriate if there is no genuine issue as to any material fact in the record. R. 4:46-2(c).

The judgment or order sought shall be ren dered forthwith if the pleadings, deposi tions, answers to interrogatories and admis sions 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.

[Ibid.]

Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995), outlined the standard for deciding a summary-judgment motion:

[A] determination whether there exists a "genuine issue" of material fact that pre cludes summary judgment requires the motion judge to consider whether the competent evi dential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.

Therefore, the motion must be considered on the basis that the non-moving parties' assertions of fact are true and "grant all the favorable inferences to the non-movant." Id. at 536. The determination is whether the evidence "'is so one-sided that one party must prevail as a matter of law.'" Ibid. (quoting Ander son v. Liberty Lobby, Inc. 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

"If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2." Id. at 540 (citation omitted). "However, an opposing party who offers no substantial or mate rial facts in opposition to the motion cannot complain if the court takes as true the uncontradicted facts in the movant's papers." Baran v. Clouse Trucking, Inc., 225 N.J. Super. 230, 234 (App. Div.) (citation omitted), certif. denied, 113 N.J. 353 (1988). Asser tions that are conclusive and self-serving are insufficient to defeat a summary-judgment motion. Puder v. Buechel, 183 N.J. 428, 440-41 (2005).

Despite obvious gaps in the evidence supporting the judge's decision to reform the lease, and despite his resolution of dis puted facts relating to reformation of the lease in the land lord's favor, the tenant appeals only the determination that it had a duty to defend and indemnify the landlord under 27 of the lease. Relying on Azurak, supra, 175 N.J. at 112, the tenant urges that 27 has failed to satisfy the "'bright line' rule requiring 'explicit language' that indemnification and defense shall include the indemnitee's own negligence." It urges that this explicit language "must specifically reference the negligence or fault of the indemnitee," id. at 112-13, and no such explicit language is present in 27.

The landlord and the Kukoffs assert that Azurak does not con trol the issue before us, because 27 requires indemnifica tion "for any cause or reason whatsoever arising out of or by reason of the occupancy by the Tenant and the conduct of the Tenant's business." They urge this clear and unambiguous lan guage subsumes the landlord's negligence and specific wording to that effect is not required, relying on Swisscraft Novelty Co. v. Alad Realty Corp., 113 N.J. Super. 416 (App. Div. 1971); Mid land Carpet Corp. v. Franklin Associated Properties, 90 N.J. Super. 42 (App. Div. 1966); and Kuzmiak v. Brookchester, Inc., 33 N.J. Super. 575 (App. Div. 1955).

In Ramos v. Browning Ferris Industries of South Jersey, Inc., 103 N.J. 177, 180-81 (1986), the Supreme Court considered a contractual duty to indemnify in the context of the defendant tortfeasor's claim for indemnification from the injured plaintiff's employer. The service contract between them provided that the employer acknowledged "that it has care, custody and management of equip ment owned by the [defendant] and accept[ed] responsibility for the equipment and its contents except when it is being physi cally handled by employees of the [defendant]." Id. at 182. Therefore, the employer "expressly agree[d] to defend, indemnify and hold harmless the [defendant] from and against any and all claims for . . . injury to or death of person or persons result ing from or arising in any manner out of [the employer's] use, operation or possession of the equipment furnished under this Agreement." Ibid. The plaintiff was wheeling a 400-pound drum on a cart through the defendant's yard when the cart became caught in a snow-covered hole, and the drum rolled onto his leg. Ibid.

In construing the indemnification agreement, the Court applied long-established principles that such agreements "are interpreted in accordance with the rules governing the construc tion of contracts generally," and ambiguous clauses "should be strictly construed against the indemnitee." Id. at 191 (cita tions omitted). "Thus, a contract will not be construed to indemnify the indemnitee against losses resulting from its own negligence unless such an intention is expressed in unequivocal terms." Id. at 191-92 (citations omitted) (emphasis added).

Although the trial court determined that the indemnifica tion clause extended only to the employer's negligence, we "dis agreed and ruled that the agreement entitled [the defendant] to indemnification for its own negligence." Id. at 192. We had focused on the exception to the employer's acceptance of responsibility for the equipment and its contents as establishing the scope of the indemnification agreement. Ibid. Because the defendant was not physically han dling the equipment, it was entitled to be indemnified. Ibid. The Supreme Court disagreed. Ibid.

The Court found that the plaintiff was not injured as a result of the use, operation, or possession of the equipment, but rather was injured as a result of the rut in the yard cre ated by the defendant. Ibid. "Hence, the accident did not activate [the employer's] duty to indemnify [the defendant]." Id. at 192-93. The Court found this "conclusion is consistent with another provision in the agreement that [the employer] is not responsible for the compactor 'when it is being physically han dled by employees of [the defendant].'" Id. at 193. The Court continued:

We recognize that the agreement is ambiguous whether [the employer] agreed to indemnify [the defendant] from liability for [the defendant's] own acts of negligence that produce injuries at a time other than the moment when [the defendant] is handling the compactor. Construing the ambiguity against [the defendant], as we must, we conclude further that [the employer] did not agree to indemnify [the defendant] from liability for creating ruts that subsequently produce injuries. Consequently, [the defendant] is not entitled to indemnification from [the employer].

[Ibid.]

The Supreme Court revisited these principles in Mantilla v. NC Mall Associates, 167 N.J. 262 (2001). There, the plaintiff, a shopping mall patron, slipped and fell in water that accumu lated on the floor of the mall as the result of a leaking roof. Id. at 264. She sued the mall, its owners and managers, and the cleaning company. Ibid. The jury found the plaintiff, the mall, and the cleaning company all negligent and allocated fault ten percent to plaintiff, forty percent to the mall, and fifty percent to the cleaning company. Id. at 264-65. The mall then sought contractual indemnification from the cleaning company. Id. at 265.

The issue before the Court was whether the mall was enti tled to indemnification for the legal fees it incurred in defending itself against a claim of its own negligence. Id. at 266. There were three indemnification clauses in the contract between the mall and the cleaning company. Id. at 266-67. The first clause provided in pertinent part: "Contractor shall indemnify and hold Owner harmless from any loss, cost, damage, liability or other expense whatso ever that Owner may suffer or incur as the result of a failure of materials and workmanship to be as warranted." Id. at 266. The second clause stated in pertinent part: "Contractor shall indemnify and save Owner harmless from any and all loss, cost, expense, damages, claims and liability for bodily injury, death or property damage occurring in and about the Shopping Center as a result of the work performed and materials and equipment installed or fur nished by Contractor hereunder." Ibid. The third clause required that:

[Contractor] shall indemnify and hold Owner . . . harmless from and against any and all claims, liabilities, damages, losses and judgments, including cost and expenses inci dent thereto, which may be suffered by or accrue against, be charged to or recoverable from indemnities [sic], by reason of injury to or death of any person or by reason of injury to or destruction of property, caused by or arising from the negligence of [the Contractor], its officers, agents or employ ees, in connection with any matter dealt with in this agreement.

[Id. at 267.]

Agreeing with two of our decisions precluding indemnifica tion for costs and legal fees expended by the indemnitee in defending against its own negligence, Geralnik v. Simon Debar tolo Group, No. A-1032-99T3 (App. Div. Oct. 25, 2000), certif. denied, 168 N.J. 292 (2001), and Cen tral Motor Parts Corp. v. E.I. duPont deNemours & Co., 251 N.J. Super. 5 (App. Div. 1991), id. at 267-71, the Court held that the mall's "defense costs were losses resulting from its own negligence and not that of [the cleaning company]," id. at 273. The cleaning company could not be held responsible for those costs, because the "contract failed to express in unequivocal terms that [the cleaning company] would indemnify [the mall] for legal expenses incurred in defending itself against claims of its own negligence." Ibid.

More recently, the Supreme Court in Azurak construed an indemnification clause that contained the following provision:

Contractor . . . shall indemnify, defend and hold harmless each Indemnitee . . . from and against any claim (including any claim brought by employees of Contractor), liability, damage or expense (including attorneys' fees) that such Indemnitee may incur relating to, arising out of or exist ing by reason of (i) Contractor's perform ance of this Agreement or the conditions created thereby (including the use, misuse or failure of any equipment used by Contrac tor or its subcontractors, servants or employees) or (ii) Contractor's breach of this Agreement or the inadequate or improper performance of this Agreement by Contractor or its subcontractors, servants or employees.

[Azurak, supra, 175 N.J. at 111.]

This, too, was a contract between a mall and a cleaning com pany. Ibid. The plaintiff slipped on a "'cheese-type' sub stance" at the mall and sued the mall and the cleaning company. Ibid. The Law Division concluded that the indemnification clause "provided a 'broad form' of indemnification under Doloughty v. Blanchard Const[r]. Co., 139 N.J. Super. 110 (Law Div. 1976)." Ibid.

On appeal, we reversed because the indemnification clause "was neither explicit nor unequivocal on the subject of the indemnitee's negligence, thus falling short of the standard . . . established" in Ramos, supra, 103 N.J. 177, and reaffirmed in Mantilla, supra, 167 N.J. 262. Id. at 111-12. We rejected the mall's reliance on Doloughty and found no exception in the "bright line" requirement for "'explicit language' that indemnification and defense shall include the indemnitee's own negligence." Azurak v. Corporate Prop. Investors, 347 N.J. Super. 516, 523 (App. Div. 2002).

The Supreme Court subscribed to our disposition of the case. Azurak, supra, 175 N.J. at 112. It added only the following:

To the extent that Doloughty distinguishes between "broad" and "limited" indemnifica tion clauses and suggests that the former provides a way to include an indemnitee's negligence within an indemnification agree ment without explicitly referring to the indemnitee's "negligence" or "fault," it is no longer good law. It was implicitly over ruled by Ramos and Mantilla, and we reaffirm that view here. Moreover, even if the "broad form" notion retained some vitality, the indemnification provision in this case would not have passed muster. As the Appellate Division noted, the clause focused on [the cleaning company], thus eliminating the pos sibility of construing it to include the indemnitee's negligence. [Azurak, supra, 347 N.J. Super. at 523.] Finally, in order to allay even the slightest doubt on the issue of what is required to bring a negligent indemnitee within an indemnifica tion agreement, we reiterate that the agree ment must specifically reference the negligence or fault of the indemnitee.

[Id. at 112-13 (emphasis added).]

The rule prohibiting indemnification for an indemnitee's own negligence absent the expression of such an intention "in unequivocal terms," Ramos, supra, 103 N.J. at 191-92, has been applied in a variety of circumstances. See Serpa v. N.J. Tran sit, 401 N.J. Super. 371, 379 (App. Div. 2008) (New Jersey Transit was not entitled to indemnification from its contractor, the plaintiff's employer, for New Jersey Transit's own negligence because agreement did not expressly state such an intention); Englert v. The Home Depot, 389 N.J. Super. 44, 56-58 (App. Div. 2006) (general contractor not entitled to indemnification from its subcontractor for steel erection because subcontract did not expressly so provide), certif. denied, 192 N.J. 71 (2007); Carvalho v. Toll Bros. & Developers, 278 N.J. Super. 451, 464-66 (App. Div. 1995) (indemnity contract between developer and town did not expressly provide for indemnification of town's engineer for engineer's own negligence), aff'd, 143 N.J. 565 (1996); Meder v. Resorts Int'l Hotel, Inc., 240 N.J. Super. 470, 472, 478-79 (App. Div. 1989) (hotel not entitled to indemnification from employer of plaintiff's deceased husband pursu ant to contract to stock hotel with metal, metal studs, and sheet rock because contract did not unequivocally provide that employer would indemnify hotel for its own negligence), certif. denied, 121 N.J. 608 (1990); Gulf Oil Corp. v. ACF Indus., Inc., 221 N.J. Super. 420, 425-29 (App. Div. 1987) (lease agreement between lessee and lessor of rail road hopper cars did not expressly require lessee to indemnify lessor for lessor's own negligence resulting in injuries to employee of an independent contractor hired to clean cars), certif. denied, 111 N.J. 613 (1988).

Notably, in Englert, supra, 389 N.J. Super. 47-48, one of the two indemnification clauses provided that the subcontract would indemnify the general contractor with respect to claims "arising out of or resulting from the performance of [the subcontrac tor's] Work under this Sub-contract . . . to the extent caused in whole or in part by any negligent act or omission of [the subcontractor] . . . , regardless of whether it is caused in part by a party indemnified hereunder." We found the two critical phrases in this clause were "to the extent caused" and "regardless of." Id. at 48.

The other indemnification clause required the subcontractor to indemnify the general contractor for losses "caused in whole or in part by the acts or omission of [the subcontractor], any subsubcontracts [sic] vendor, materialman, or any other person director of indirectly employed by [the subcontractor], or any of them while engaged in the performance of the Work or any activity associated therewith or relative thereto." Ibid.

We found that ambiguities within the first clause and incon sistencies between the two clauses simply "d[id] not demon strate the required clear and unequivocal intention for [the general contractor] to be indemnified for its own share of neg ligence." Ibid. (citations omitted). We construed the phrase "regardless of" as merely avoiding the rule that requires the indemnitee to be free of fault. Id. at 56. The "to the extent" phrase could be construed to mean "if" the subcontractor was also found negligent, which would not be inconsistent with com plete indemnification of the general contractor. Ibid. But it also could be construed to mean that the subcontractor would indemnify the general contractor "to the extent of" the subcon tractor's negligence. Ibid. Thus, the first indemnification clause "d[id] not satisfy the required 'unequivocal' expression of intention." Ibid. The presence of the second clause, "lack ing either of the critical phrases" of the first, "create[d] additional ambiguity." Id. at 57. We concluded, "Thus the terms of the contract taken as a whole cannot meet the Ramos-Mantilla-Azurak standard; they do not 'express in unequivocal terms' the intention for [the subcontractor] to indemnify [the general contractor] for its own negligence." Ibid. (citation omitted).

The landlord urges that the language at the end of the indem nification clause, "for any cause or reason whatsoever arising out of or by reason of the occupancy by the Tenant and the conduct of the Tenant's business," is sufficient to impose a duty to indemnify it for its own negligence. It urges,

Spe cific wording to that effect is not required, only a clear and unequivocal intention for the indemnitee to be indemnified for its own negligence is. Furthermore, when a lease contains a hold harmless and indemnification agreement, which is clear, that agreement is also enforceable, and requires contractual indemnification of the landlord by the tenant.

The landlord reliance on Swisscraft Novelty Co., supra, 113 N.J. Super. 416; Midland Carpet Corp., supra, 90 N.J. Super. 42; and Kuzmiak, supra, 33 N.J. Super. 575, in support of this claim is misplaced. These cases all construed exculpatory clauses between landlords and tenants respecting injury or damage suffered by the tenants and are not subject to the requirements of Ramos and its progeny. Gulf Oil, supra, 221 N.J. Super. at 429.

Clearly, the indemnification clause at issue here does not specifically express that the tenant will indemnify and hold the landlord harmless for its own negligence. We see no basis for excepting leases from the Ramos-Mantilla-Azurak rule. The motion judge erred in finding that the tenant was required to indemnify the landlord.

 
Reversed.

The parties performed as though this five-year lease renewed for another five years on October 1, 2001.

The record does not disclose whether there were any assigned spaces for the tenant's employees nor does it disclose where the uncovered well was located.

During the proceedings before the motion judge, at the request of the landlord, the judge reformed the lease to reflect M&M Louie Holdings, LLC, as the landlord, and defendant Kukoff Industries, Inc., was dismissed from the action.

Clearly, the tenant complied with the requirements of 27 in procuring insurance for the landlord named in the lease.

Despite the requirements of Rule 2:5-4(a), neither side has included in their appendices the certifications and the Rule 4:46-2(a) statements of material facts submitted in support of these motions.

Once again, the parties have not included the certification submitted in support of this motion in their appendices.

The landlord also urges that it is entitled to coverage under the tenant's general liability policy. They contend that Liberty Village Associates v. West American Insurance Co., 308 N.J. Super. 393 (App. Div.), certif. denied, 154 N.J. 609 (1998); Harrah's Atlantic City, Inc. v. Harleysville Insurance Co., 288 N.J. Super. 152 (App. Div. 1996); and Franklin Mutual Insurance Co. v. Security Indemnity Insurance Co., 275 N.J. Super. 335 (App. Div.), certif. denied, 139 N.J. 185 (1994), all support the conclusion that the landlord is entitled to coverage under the tenant's general liability policy as an additional insured and that the lease falls within the contractual liability clause of the policy, thus affording coverage pursuant to Robinson v. Janay, 105 N.J. Super. 585 (App. Div.), certif. denied, 54 N.J. 508 (1969).

The motion judge did not determine this latter issue, nor could he, because the tenant's insurer was never named as a party to this lawsuit. See Vanderbilt v. Vanderbilt, 354 U.S. 416, 418, 77 S. Ct. 1360, 1362, 1 L. Ed. 2d 1456, 1459 (1957) ("It has long been the constitutional rule that a court cannot adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant."). The landlord and the Kukoffs did not even cross-appeal from the judge's orders, assuming they believe the judge erred in failing to reach this issue. The lack of a cross-appeal deprives us of jurisdiction over the issue. State v. Elkwisni, 190 N.J. 169, 175 (2007); Walrond v. County of Somerset, 382 N.J. Super. 227, 231 n.2 (App. Div. 2006). See also Pressler, Current N.J. Court Rules, comment 2 on R. 2:3-4 (2010) (a respondent must cross-appeal to obtain relief from the judgment). There is nothing in the record on appeal to suggest that this issue was even raised before the motion judge. As such, we will not construe the policy issued by Hanover. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation omitted). The only issue properly before us is whether 27 may be construed to require defense and indemnification for the landlords' own negligence.

Defendant references this case for the proposition that "a clear and unequivocal intention for the indemnitee to be indemnified for its own negligence, not specific wording to that effect, is required," citing Englert, supra, 389 N.J. Super. at 53. No such proposition can be found at page fifty-three or any other page of the opinion.

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A-0639-09T2

July 20, 2010