Hopper v. Kelz

Annotate this Case
Hopper v. Kelz  (96-518); 166 Vt. 616; 694 A.2d 415

[Filed 3-Apr-1997]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 96-518

                              MARCH TERM, 1997

Wayne and Judy Hopper           }     APPEALED FROM:
     v.                         }
Richard and Kathleen Kelz       }     Bennington Superior Court
     v.                         }
Scott Brown and H. Greenberg    }     DOCKET NO. S0289-95 BcC
    & Sons                      }

       In the above-entitled cause, the Clerk will enter:

       Third-party plaintiffs Richard and Kathleen Kelz appeal the dismissal
  of their claim against third-party defendants H. Greenberg & Sons and Scott
  Brown, and an order granting third-party defendants' motion for judgment on
  the pleadings pursuant to V.R.C.P. 12(c).  We affirm.

       On a V.R.C.P. 12(c) motion, the issue is whether the movant is
  entitled to judgment as a matter of law on the basis of the pleadings.  For
  purposes of a Rule 12(c) motion, all well pleaded factual allegations in
  the nonmovant's pleadings and all reasonable inferences that can be drawn
  from the pleadings are assumed to be true and any contravening assertions
  in the movant's pleadings are taken to be false.  Thayer v. Herdt, 155 Vt.
  448, 456, 586 A.2d 1122, 1126 (1990).

       The pleadings indicate that on August 7, 1993, Wayne Hopper suffered
  injuries while he and fellow employee Scott Brown were attempting to remove
  an old refrigerator from the Kelzes' basement.  The Kelzes had purchased a
  new refrigerator from Hopper's employer, H. Greenberg & Sons, which as part
  of the sales contract had agreed to remove an old refrigerator from the
  Kelzes' basement.  As a result of his injuries, Hopper received workers'
  compensation from H. Greenberg & Sons.  In addition, Hopper brought a tort
  action against the Kelzes, alleging that he was injured because the Kelzes
  directed that he use a cellar stairway to remove the refrigerator and that
  the stairway was unsafe for that task.  On January 18, 1996, the Kelzes
  filed a third-party complaint against H. Greenberg & Sons and Scott Brown,
  seeking indemnification of any judgment Hopper might receive against the
  Kelzes in the tort action.

       A party may seek indemnity from a joint tortfeasor "if (a) there is an
  express agreement or undertaking by one to indemnify the other, or (b) the
  circumstances are such that the law will imply such an undertaking." 
  Bardwell Motor Inn, Inc. v. Accavallo, 135 Vt. 571, 572, 381 A.2d 1061,
  1062 (1977).  There was no express agreement of indemnification between the
  Kelzes and H. Greenberg & Sons, or between the Kelzes and Scott Brown.  The
  Kelzes nonetheless argue that an implied right of indemnification exists
  between them and third-party defendants.

       The Kelzes argue that Bardwell is analogous to this case.  We
  disagree.  In Bardwell, we adopted the rule in the Restatement of
  Restitution § 95 (1937), which states that an implied right of
  indemnification arises


     "[w]here a person has become liable with another for harm
     caused to a third person because of his negligent failure to make
     safe a dangerous condition of land or chattels, which was created
     by the misconduct of the other or which, as between the two, it
     was the other's duty to make safe . . . ."

  Id. at 573, 381 A.2d  at 1062 (quoting Restatement of Restitution § 95
  (1937)).  In Bardwell, the operator of an inn contracted with a
  glass-repair company to fix the glass on the front door of the inn.  During
  the repair process, one of the patrons of the inn was injured while trying
  to open the door.  The patron received money damages from the innkeeper,
  who had a nondelegable duty to keep the premises safe.  The innkeeper then
  sought to recover these damages from the repair company under a theory of
  implied indemnity.  We held that the innkeeper was entitled to
  indemnification by the repair company based upon their contractual
  agreement.  Id. at 574, 381 A.2d  at 1063.  The agreement entrusted the
  performance of the innkeeper's nondelegable duty to the repair company and
  impliedly required the repair company to discharge it in a safe and
  skillful manner.  Id.; cf. Peters v. Mindell, 159 Vt. 424, 429, 620 A.2d 1268, 1271 (1992) (where purchasers of house sue builders for damages
  caused by defective septic tank, builders may obtain indemnity from
  engineers who designed and certified construction of tank).

       This case is not governed by § 95 of the Restatement.  Hopper alleges
  that the Kelzes failed to maintain their stairway in a safe condition and
  that the hazardous condition of the stairway caused his injury. 
  Third-party defendants H. Greenberg & Sons and Scott Brown may have had a
  duty to the Kelzes to replace the refrigerator in a safe and skillful
  manner, but they did not undertake the Kelzes' duty to maintain the
  premises in a safe condition.  Indeed, third-party defendants incurred no
  duty with respect to the safety of the stairway.  Since there is no legal
  relationship between the Kelzes and third-party defendants that would give
  rise to an implied right of indemnification, we affirm.

       Because we hold that the Kelzes have no right of indemnification
  against H. Greenberg & Sons, we do not decide whether H. Greenberg & Sons'
  statutory immunity under the workers' compensation statute, see 21 V.S.A.
  §§ 622, 624, precludes the Kelzes from seeking indemnity from H. Greenberg
  & Sons.


                              BY THE COURT:

                              Jeffrey L. Amestoy, Chief Justice

                              Ernest W. Gibson III, Associate Justice

                              John A. Dooley, Associate Justice

                              James L. Morse, Associate Justice

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