QUICK DELIVERY OF KENTUCKY, INC. v. PAYLESS SHOE SOURCE, INC.
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RENDERED:
DECEMBER 16, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001230-MR
QUICK DELIVERY OF KENTUCKY, INC.
v.
APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE HENRY M. GRIFFIN III, JUDGE
ACTION NO. 00-CI-00406
PAYLESS SHOE SOURCE, INC.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM AND JOHNSON, JUDGES; EMBERTON, SENIOR JUDGE. 1
JOHNSON, JUDGE:
Quick Delivery of Kentucky, Inc. has appealed
from the May 15, 2003, order of the Daviess Circuit Court which
granted summary judgment in favor of Payless Shoe Source, Inc.
Having concluded that there is no genuine issue as to any
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
material fact and that Payless is entitled to judgment as a
matter of law, we affirm.
On September 23, 1991, Payless entered into a “Pool
Point Service Agreement” with Quick Delivery.
The agreement
provided for Quick Delivery to regularly deliver merchandise on
behalf of Payless to Payless’s various retail outlets.
The
portion of the agreement at issue in this case is section 6.6
under the default and indemnification provision, which states:
You agree to indemnify, defend, and
hold harmless from and against any and all
claims (whether valid or not), losses,
damages, liabilities, costs (including
attorney’s fees), and expenses arising in
any way out of your performance of this
Agreement, including acts or failures to act
of your employees and contractors, except
that you are not responsible for damages
caused solely by negligence or the willful
conduct of Payless.
On November 10, 1998, an employee of Quick Delivery
slipped and fell while making a delivery to a Payless store in
the Towne Square Mall in Daviess County, Kentucky.
The employee
sued Payless for injuries she sustained, including the
miscarriage of her unborn child. 2
The Daviess Circuit Court
entered summary judgment in favor of Payless stating that the
employee’s action was barred because she had received workers’
compensation benefits for her injuries, and because she had
2
The complaint also named Towne Square Mall and Dawahares, Inc. as
defendants; however, neither Towne Square Mall nor Dawahares is a party to
this appeal.
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failed to exercise ordinary care for her own safety.
This Court
affirmed the order granting summary judgment on February 22,
2002. 3
Subsequently, Payless filed a complaint for
declaratory judgment on March 23, 2000, against Quick Delivery
wherein it cited the default and indemnification portion of the
agreement for its position that Quick Delivery must reimburse it
for its costs and attorney’s fees incurred in defending the
employee’s claims.
Quick Delivery filed its answer to the
complaint on April 5, 2000.
Following this Court’s affirmance of the summary
judgment in the employee’s case, Payless filed a motion
requesting summary judgment against Quick Delivery.
Payless
stated that “[a]ccording to the explicit terms of the Agreement
between Payless and Quick Delivery, Quick Delivery must
indemnify Payless with attorney’s fees from the defense of the
claims by [the employee]. 4
On May 14, 2003, the trial court
entered its order granting summary judgment to Payless.
In its
order the trial court stated:
The only exception to Quick Delivery’s duty,
under the terms of the Agreement, is if the
3
Case No. 2001-CA-000489-MR, not-to-be published and made final on April 23,
2002.
4
We note that on May 15, 2003, Payless filed a “Reply To Defendant’s Response
to Plaintiff’s Motion For Summary Judgment.” However, we do not find
anywhere in the record on appeal where Quick Delivery filed a response to
Payless’s motion for summary judgment.
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injury is the result of the sole negligence
of Payless. . . . The Court of Appeals
affirmed the Daviess Circuit Court Order
granting summary judgment and stated that
the fall of the Quick Delivery employee
“resulted from an open and obvious danger of
which [she] should have been aware.”
Therefore, the injury could not have been
“caused solely [by] negligence of . . .
Payless” and as such does not fall within
the exception outlined in the parties’
agreement.
This appeal followed.
Quick Delivery claims that “[a] genuine issue of
material fact exists as to whether the indemnity provision of
the contract intend[ed] to cover [ ] alleged negligence and cost
of defense in a civil action solely against [Payless] on
allegations of premise liability.”
We disagree and conclude
that no genuine issue of material fact exists and that Payless
is entitled to summary judgment as a matter of law.
The standard of review governing an appeal of a
summary judgment is well-settled.
We must determine whether the
trial court correctly found that there was no genuine issue as
to any material fact and that the moving party was entitled to a
judgment as a matter of law. 5
Summary judgment is appropriate
“if the pleadings, depositions, answers to interrogatories,
stipulations, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
5
Scifres v. Kraft, Ky.App., 916 S.W.2d 779, 781 (1996).
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any material fact and that the moving party is entitled to a
judgment as a matter of law.” 6
In Paintsville Hospital Co. v.
Rose, 7 the Supreme Court of Kentucky held that for summary
judgment to be proper the movant must show that the adverse
party cannot prevail under any circumstances.
The Court has
also stated that “the proper function of summary judgment is to
terminate litigation when, as a matter of law, it appears that
it would be impossible for the respondent to produce evidence at
the trial warranting a judgment in his favor.” 8
There is no
requirement that the appellate court defer to the trial court
since factual findings are not at issue. 9
“The record must be
viewed in a light most favorable to the party opposing the
motion for summary judgment and all doubts are to be resolved in
his favor” [citation omitted]. 10
Furthermore, “a party opposing
a properly supported summary judgment motion cannot defeat it
without presenting at least some affirmative evidence showing
that there is a genuine issue of material fact for trial.”
The right to contract to assume the obligation to
6
Kentucky Rules of Civil Procedure (CR) 56.03.
7
Ky., 683 S.W.2d 255, 256 (1985).
8
Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476, 480
(1991).
9
Goldsmith v. Allied Building Components, Inc., Ky., 833 S.W.2d 378, 381
(1992).
10
Steelvest, 807 S.W.2d at 480.
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indemnify another is well-established. 11
A contract of indemnity
has been defined as “an obligation or duty requiring a promisor
. . . to make good any loss or damage which another has incurred
while acting at the request or for the benefit of the promisor”
[citation omitted]. 12
“[A]n indemnity contract creates a direct,
primary liability between the promisor and the promisee that is
original and independent of any other obligation” [citation
omitted] [emphasis original]. 13
In a contractual indemnity
claim, an indemnitor’s liability “shall be determined by the
provisions of the indemnity agreement itself.” 14
Quick Delivery cites Employers Mutual Liability
Insurance Co. v. Griffin Construction Co., 15 in arguing that the
trial court erred by finding that the indemnity clause required
indemnification of Payless against the employee’s claims of
negligence.
Employers Mutual involved the contractual
indemnification of a power company “from any and all claims for
injuries to persons or for damage to property happening by
reason of any negligence on the part of the Contractor or any of
the Contractor’s agents or employees during the control by the
11
Crime Fighters Patrol v. Hiles, 740 S.W.2d 936, 938 (Ky. 1986).
12
Intercargo Insurance Co. v. B.W. Farrell, Inc., 89 S.W.3d 422, 426 (Ky.App.
2002).
13
Id.
14
Thompson v. Budd Co., 199 F.3d 799, 807 (6th Cir. 1999).
15
280 S.W.2d 179 (Ky. 1955).
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Contractor of the project or any part thereof.” 16
Our Supreme
Court held that such terms were not “sufficiently broad or
unequivocal” to impose liability on the contractor for injuries
caused by the power company’s negligence, and that “a contract
of indemnity will not be construed to indemnify a party against
his own negligence unless such intention is clearly manifest and
no other interpretation fairly may be ascribed to it.” 17
A
similar conclusion was reached in Amerco Marketing Co. of
Memphis, Inc. v. Myers, 18 cited by Quick Delivery, which involved
comparable restrictive language in contractual indemnity
provisions.
However, in the case before us, Payless is not
claiming indemnification for its own negligence.
The agreement
clearly states that Quick Delivery is responsible for
indemnifying Payless under the agreement “except that [Quick
Delivery] [is] not responsible for damages caused solely by
negligence or the willful conduct of Payless.”
Thus, Quick
Delivery was obligated to indemnify Payless against any claim
which was not solely caused by the negligence of Payless or by
the willful conduct of Payless.
16
The trial court in a summary
Employers Mutual, 280 S.W.2d at 183.
17
Id. See also Fosson v. Ashland Oil & Refining Co., 309 S.W.2d 176 (Ky.
1957).
18
494 F.2d 904, 914 (6th Cir. 1974).
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judgment, that was affirmed by the Court of Appeals, ruled that
the employee’s injuries “resulted from an open and obvious
danger of which [she] should have been aware[,]” and that
Payless had no liability for the injuries the employee suffered
as a result of the fall.
The words of a contract shall be given their ordinary
meaning. 19
A contract which is unambiguous needs no construction
and will be performed and enforced in accordance with its
express terms. 20
Therefore, as a matter of law the parties’
agreement must be construed to obligate Quick Delivery to
indemnify Payless for damages, including costs and attorney’s
fees, relating to Payless’s defense of Quick Delivery’s
employee’s claim against it.
As for Quick Delivery’s references to other provisions
of the agreement as controlling this issue, we agree that the
citation to those other provisions is completely irrelevant to
the issue on appeal.
We will not discuss any provision not
related to the indemnity provision of the agreement. 21
For the foregoing reasons, the summary judgment of the
Daviess Circuit Court is affirmed.
19
Fay E. Sams Money Purchase Pension v. Jansen, 3 S.W.3d 752, 757 (Ky.App.
1999).
20
Ex parte Walker’s Ex’r, 253 Ky. 111, 117, 68 S.W.2d 745, 747 (1933).
21
To conclude otherwise would violate the long-established principle that a
written contract must be construed as a whole, so as to give effect to all
parts and every word if possible. See Restatement (Second) of Contracts
§203(a) (1981); and City of Louisa v. Newland, 705 S.W.2d 916 (Ky. 1986).
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
W. Mitchell Deep
Henderson, Kentucky
Jennifer Kaelin Luhrs
Louisville, Kentucky
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