J-A09035-14



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BURLINGTON COAT FACTORY OF                     IN THE SUPERIOR COURT OF
PENNSYLVANIA, LLC and BURLINGTON                     PENNSYLVANIA
COAT FACTORY WAREHOUSE
CORPORATION,

     Appellant

                   v.

GRACE CONSTRUCTION MANAGEMENT
COMPANY, LLC

     Appellee                                  Nos. 2036 EDA 2013



               Appeal from the Order Entered June 14, 2013
          In the Court of Common Pleas of Philadelphia County
         Civil Division at No(s): October Term, 2011, No. 001844

BEFORE: BOWES, J., OTT, J., AND JENKINS, J.

MEMORANDUM BY: JENKINS, J.                     FILED SEPTEMBER 15, 2014

     This is an appeal by Burlington Coat Factory of Pennsylvania, LLC and



order granting summary judgment to Grace Construction Management



indemnity. We affirm.

     Burlington   Coat   Factory   Warehouse    Corporation   is   the   parent

corporation of Burlington Coat Factory of Pennsylvania, LLC, which operates

a store in Philadelphia, Pennsylvania. Grace, a general contractor, entered




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the store.     The parties labeled the Agreement as between Grace and

                                         ade name.

                                                                                  -

sub-contractors, suffered injuries when at the store when the doors to a

freight elevator closed and struck him in the back. Eddis and his wife filed a

personal     injury   action   against    BCF,   Schindler   Elevator   Corporation



demanded a defense and indemnification from Grace pursuant to the

Agreement, but Grace rejected the demand.            In October 2011, BCF filed a

separate action against Grace alleging breach of contract as well as counts



the accident, or, in the alternative, the Agreement required Grace to



      In October 2012, the Eddises settled their action for $70,000, with BCF

contributing $35,000 and Schindler contributing $35,000.            There was no

admission of liability in the settlement agreement.

      BCF and Grace filed cross-motions for summary judgment.              On June




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require Grace to indemnify B

timely appeal1.

     BCF raises the following issues on appeal:

           1. Did the lower court err in granting summary
           judgment to [Grace] on a finding that only [BCF]
           could be liable for an injury in its elevator when
           there was evidence on which a jury could find that:
           a) the elevator did not malfunction; and b) whether
           it malfunctioned or not, the injury was caused, at
           least in part, by the negligence of [Grace] or those
           for whose acts [Grace] undertook a duty to
           indemnify [BCF]?

           2. Did the lower court err in granting summary
           judgment to [Grace] on a conclusion of law that the
           construction contract did not require [Grace] to
           indemnify [BCF] for its own negligence when a
           general indemnification provision in the General
           Conditions of the contract benefitting numerous
           parties limited the indemnification duty to "the
           extent caused by" negligence of [Grace] or anyone
           working under it, but a more specific provision in the
           contract, relating only to [BCF], provided for an
           unlimited duty to indemnify?

           3. Did the lower court err in granting summary
           judgment to [Grace] upon a conclusion of law [that
           Grace] satisfied its obligation to procure insurance
           naming [BCF] as an additional insured, when the
           insurance   procured     was    not   primary   and,

           burden of buying insurance for a construction project
           was defeated?

BCF Opening Brief, Statement Of Questions Involved.            Stated more

succinctly, BCF contends that summary judgment was improper because (1)


1
  The lower court did not order BCF to file a statement of matters
complained of on appeal.
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BCF has a valid cause of action against Grace for contribution, (2) Grace is

required to indemnify BCF under the Agreement, and (3) Grace is required

to obtain insurance that names BCF as an additional insured.

                                             ainst   Grace     for   contribution.

Contribution is available against any defendant, even one the original

plaintiff did not sue. Burch v. Sears, Roebuck & Co., 467 A.2d 615, 622

(Pa.Super.1983)

original proceeding ... via joinder of the additional defendants, see Pa.R.C.P.

2252

an original defendant who has previously been held liable to the original

              Bianculli   v.   Turner   Const.   Co.,    640   A.2d    461,   465

(Pa.Super.1994), appeal denied, 651 A.2d 541 (1994).                  Where the

defendants in a contribution action are not defendants in the original case,



plaintiff and prove that the new defendant was a joint tortfeasor in that his

tortious c                                        Mattia v. Sears, Roebuck

& Co., 531 A.2d 789, 791 (1987), appeal denied, 519 Pa. 660 (1988).

       BCF contends, and Grace does not dispute, that Eddis was performing

work for Grace when he suffered his injuries.           BCF asserts that Grace

negligently trained and supervised Eddis with respect to his use of the

                                                                          ce that




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harm. We conclude that the trial court properly entered summary judgment

                         failure to prove causation against Grace.

     In an action in negligence, the plaintiff must prove four elements: (1)

a duty or obligation recognized by law; (2) breach of the duty; (3) causal

connection between the actor's breach of the duty and the resulting injury;

and (4) actual loss or damage suffered by complainant.       Merlini ex rel.

Merlini v. Gallitzin Water Authority, 980 A.2d 502, 506 (Pa.2009). The



impose liability upon anyone as there remains to be proved the link of

                                                                           Lux

v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286 (Pa.Super.2005)

                                                                   uct must be

                                                                     Hamil v.

Bashline

art denoting the point at which legal responsibility attaches for the harm to

another arising out of some act of defendant; and it may be established by

evidence that the defendant's negligent act or failure to act was a

                                                             Id.     Proximate

                                                           ulting in plaintiff's

injury is so remote as to appear highly extraordinary that the conduct could




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                                    Lux, supra, 887 A.2d at 1286-87 (citation

omitted).

        Proximate cause is a question of law that the court must determine

before placing the issue of actual cause before the jury.            Id.    A



negligence, if any, was so remote that as a matter of law, [the actor] cannot

be held legally responsible for [the] harm which sub                       Id.

Therefore, the court must determine whether the injury would have been

foreseen by an ordinary person as the natural and probable outcome of the

act complained of. Id.

        BCF argues that Eddis operated the freight elevator negligently by



elevator. BCF also argues that Grace was negligent for failing to train Eddis

how to operate the elevator and for failing to follow its own safety standards

in the use of



prohibition on using the elevator unassisted, when viewed in light of

evidence that Grace generally disregarded its own safety standards, were all

factors     that   substantially   contributed




exper


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                                                                         2
                                                                             .   R.R.

531-547a. Ross did not at                                     Id.

        Expert testimony is necessary when the subject matter of a case is

beyond the ken of the average layperson. Vazquez v. CHS Professional

Practice, P.C., 39 A.3d 395, 398-99 (Pa.Super.2012).           In our view, the

question

requires expert testimony. At least four parties      BCF, Schindler, Grace and

Eddis himself

making it difficult to decide which actor(s) caused the accident without the

testimony of an accident reconstructionist and/or expert on the use of


2
    Mr. Ross concluded:

        Based on the results of my investigation and within a reasonable
        degree of engineering and scientific certainty, I have concluded Mr.
        Eddis's injuries reported at the subject property were caused by BCF's
        failure to properly maintain and repair the subject elevator, gate and
        associated components. My investigation revealed BCF repeatedly
        ignored requests to repair the gate and doors of the subject elevator,
        creating an unsafe, unreliable and hazardous condition that resulted in
        Mr. Eddis injuries. I have also concluded Schindler failed to properly
        repair the subject elevator, specifically the alarm bell prior to the
        incident resulting in Mr. Eddis's injuries.

        It is evident the incident was caused by a failure of the safety shoe
        and alarm bell of the subject elevator. . .on the date of the incident or
        by the gate completely derailing from its track, resulting in the alarm
        bell not sounding. These conditions and the lack of a proximity edge
        installed on the subject elevator resulted in Mr. Eddis's injuries on the
        date of the incident.

R.R. 547-48.
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freight elevators.   Moreover, Eddis submitted a detailed expert report

attributing the cause of the accident to BCF and Schindler while remaining

silent about Grace. Given the number of potentially blameworthy actors and

           -crafted expert report that points away from Grace, it was

incumbent upon BCF to submit an expert report establishing a causal nexus



step dooms its action for contribution.

      A recent decision by this Court, MIIX Insurance Co. v. Epstein

(        ), 937 A.2d 469 (Pa.Super.2009), is instructive. There, a hospital

that was found liable in a medical malpractice action brought an action for

contribution against two hospital residents who were not parties to the

original action3. The trial court granted summary judgment to the residents

in the contribution action because the hospital failed to produce expert

reports establishing their negligence.    We affirmed, reasoning that expert



the residents.   Id. at 474 n. 6.   Unlike MIIX, this case does not involve

professional negligence, but we still think its rationale applies to accident

scenarios such as the case at bar. MIIX teaches that when the underlying

action involves intricate facts under which multiple persons may share

liability, and a party defendant in the underlying action seeks contribution

3
  The verdict slip in the original action inquired whether the residents were
negligent, and the jury answered these questions in the affirmative.      But
because the residents were not parties in the original actio
responses were not binding on the residents. Id., 937 A.2d at 473-74.
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from a non-party, it is important, and often essential, for the party

defendant to obtain an expert report that proves the non-

this case, BCF ignored           lesson by failing to submit an expert report

esta




matter of law.

       In its second issue on appeal, BCF argues that the Agreement between



We disagree.        There are two conflicting indemnity provisions in the

Agreement -- and since BCF drafted the Agreement, the more restrictive

provision applies, under which BCF cannot obtain indemnification.



to make good a loss which another has incurred or may incur by acting at

the request of the former, or for                             Potts v. Dow

Chemical     Co.,

agreements are to be narrowly interpreted in light of the parties' intentions

                                              Consolidated Rail Corp. v.

Delaware River Port Auth., 880 A.2d 628, 632 (Pa.Super.2005)

interpreting the scope of an indemnification clause, the court must consider



Widmer Engineering, Inc. v. Dufalla, 837 A.2d 459, 472 (Pa.Super.2003)


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(citations and quotation marks omitted).        To establish the right to

indemnification, the alleged indemnitee (herein BCF) must establish scope of

the indemnification agreement; the nature of the underlying claim; its

coverage by the agreement; the reasonableness of the alleged expenses;

and, where the underlying action is settled rather than resolved by payment

of judgment, the validity of the underlying claim and the reasonableness of

the   settlement.    McClure   v.   Deerland    Corp.,   585   A.2d   19,   22

(Pa.Super.1991).

      A party cannot obtain indemnification for its own negligence unless the

contract clearly and unequivocally provides for such indemnification. Ruzzi

v. Butler Petroleum Co., 588 A.2d 1, 7 (Pa.1991); Perry v. Payne, 66 A.

553 (Pa.1907).      As our Supreme Court

language is clear and unambiguous ... we must opt for the interpretation

that does not shoulder [subcontractor] with the fiscal responsibility for

                                           Greer v. City of Phila., et al.,

795 A.2d 376, 380 (Pa.2002). Thus, where an agreement includes multiple

contradictory indemnity provisions drafted by the same person, we construe

the agreement against the drafter and enforce the narrower provision.

Chester Upland School District v. Edward J. Meloney, Inc., 901 A.2d

1055, 1061-62 (Pa.Super.2006).




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      The record reflects that on August 28, 2009, BCF drafted the

Agreement and mailed it to Grace. R.R. 418. The Agreement includes two

indemnity provisions. The first (Provision I) states:

            To the fullest extent permitted by law, the
            Contractor (Grace) shall indemnify and hold
            harmless BCF, the Architect, the Engineer, the

            any of them from and against claims, damages,
            losses and expenses, including but not limited to

            performance of the Work4, provided that such claim,
            damage, loss or expense is attributable to bodily
            injury, sickness, disease or death, or to injury to or
            destruction of tangible property (other than the Work
            itself) including loss of use resulting therefrom, but
            only to the extent caused in whole or in part by
            negligent acts or omissions of the Contractor, a
            Subcontractor,      anyone    directly   or   indirectly
            employed by them or anyone for whose acts they
            may be liable, regardless of whether or not such
            claim, damage, loss or expenses is caused in part by
            a party indemnified hereunder.

R.R. 425-26 [emphasis added]. The second provision (Provision II) states:

            [Grace]    releases   BCF     and  assumes       entire
            responsibility and liability for any and all claims
            and/or damages or any nature or character
            whatsoever arising under the Contract Documents,
            by operation of law, or in any other manner with
            respect to work covered by this CONTRACT and
            agrees to indemnify and save BCF harmless from
            and against all claims, demands, liabilities, interest,

            of whatsoever kind or nature, whether for property

4

by the Contract Documents, and includes all other labor, materials,

                                           a lengthy list of tasks that Grace is
obligated to perform.
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J-A09035-14


            damage, personal injury or bodily injury (including
            death) to any and all persons, whether employees of
            [Grace], BCF or others, or otherwise, caused or
            occasioned thereby, resulting therefrom, arising out
            of or therefrom, or occurring in connection
            therewith...

R.R. 432 [emphasis added].

      The first and narrower indemnity provision does not obligate Grace to



on our reasoning in Chester Upland School District, supra, we find that

the first and narrower indemnity provision precludes BCF from obtaining

indemnification. In that decision, the School District contracted with various

parties, among them Contractor and Architect, for the purchase and

installation of a new chiller and cooling tower for the HVAC system at

Chester High School. The chiller malfunctioned, and the School District filed

an action against, among other parties, Contractor and Architect. Architect

filed a cross-claim against Contractor demanding indemnification for costs

and attorney fees incurred in defending itself

claims.

      Architect drafted two conflicting indemnification provisions in the

contractual documents. The first, more restrictive provision stated:

            To the fullest extent permitted by law, the
            Contractor shall indemnify and hold harmless the
            Owner, Architect, Architect's consultants, and agents
            and employees of any of them from and against
            claims, damages, losses and expenses, including but
            not limited to attorneys' fees, arising out of or
            resulting from performance of the Work, provided

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            that such claim, damage, loss or expense is
            attributable to bodily injury, sickness, disease or
            death, or to injury to or destruction of tangible
            property (other than the Work itself) including loss of
            use resulting therefrom, but only to the extent
            caused in whole or in part by negligent acts or
            omissions of the Contractor5, a Subcontractor,
            anyone directly or indirectly employed by them, or
            anyone for whose acts they may be liable, regardless
            of whether or not such claim, damage, loss or
            expense is caused in part by a party indemnified
            hereunder. Such obligation shall not be construed to
            negate, abridge, or reduce other rights or obligations
            of indemnity which would otherwise exist as to a
            party or person described in this Paragraph...

            The obligations of the Contractor under th[is]
            Paragraph. . . shall not extend to the liability of the
            Architect, the Architect's consultants, and agents and
            employees of any of them arising out of (1) the
            preparation or approval of maps, drawings, opinions,
            reports, surveys, Change Orders, designs or
            specifications, or (2) the giving of or the failure to
            give direction or instructions by the Architect, the
            Architect's consultants, and agents and employees of
            any of them provided such giving or failure to give is
            the primary cause of the injury or damage.

Id., 901 A.2d at 1059-60 (emphasis in original).          Under this provision,

Contractor was only liable if the claim arose from either its negligence or

omission, in whole or in part, or from that of its subcontractor. Moreover,

this provision specifically limited Contractor's liability to Architect so as not

to include claims against Architect arising from its performance of various

duties.


5
  Interestingly, this italicized language is identical to the crucial italicized
language in the Provision I of the Agreement. See Provision I, page 10,
supra.
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      The second (and broader) provision stated:

            The Contractor shall indemnify and save harmless
            the Owner, the Board, its members and officers, the
            Architect, his assistants, and all others who may act
            for the Board or the Owner from all suits and actions
            of every kind, nature and description brought by
            anyone whatsoever against them or any of them in
            any manner connected with the Contract here
            proposed or the work thereunder; provided that
            nothing herein stated shall be construed to preclude
            the Contractor from maintaining an action at law for
            money which may be due him under the Contract.

Id. at 1060 (emphasis in original).      Under this provision, Contractor was

liable for all claims brought against Architect in connection with the contract.

                                                                               d

              Id.



agreement against Architect and concluded that the first, more restrictive

provision applied, Id. at 1061-62, and held that Architect could not obtain

indemnification under this provision.

      Chester Upland School District

decision against BCF in the case at bar. The record demonstrates that BCF

drafted both indemnity provisions in the Agreement with Grace.            Grace

asserted in its summary judgment papers below that BCF drafted the

Agreement, R.R. 584, and BCF did not deny this point.          BCF mailed the

Agreement with both provisions to Grace, R.R. 418, and there is no evidence

that Grace amended either provision before signing the Agreement.


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Moreover, the indemnity provisions are contradictory.       Provision I requires

Grace to indemnify BCF only to the extent Grace is negligent; Provision II

requires Grace to indemnify BCF for BC

Grace is negligent. Chester Upland School District requires us to resolve

this ambiguity by construing the Agreement against the drafter, BCF, and

enforcing the more restrictive indemnity provision, Provision I. Under this




      Not only does our interpretation of the Agreement follow Chester

Upland School District

directive to deny indemnification to a party for its own negligence unless the

agreement clearly and unequivocally provides this remedy.           The Supreme

Court stated in Greer that an indemnification agreement is not clear and

unambiguous unless

indemnitor (Grace) intends to indemnify the indemnitee (BCF) for the

                                   Id., 795 A.2d at 380. Instead of putting the

matter beyond doubt, the presence of conflicting indemnity provisions in the

Agreement creates doubt as to whether Grace intends to indemnify BCF for



narrowly,   we   are   unwilling     to   award   indemnification   under   these

circumstances.


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its duty to obtain insurance naming BCF as an additional insured.    The

question of whether Grace obtained such insurance would only become

relevant if Grace had a duty to pay contribution or indemnity to BCF. For

the reasons provided above, no such duty exists6.

       Order affirmed.

       Judge Ott joins in memorandum.

       Judge Bowes files concurring and dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/15/2014




6
    Since our decision rests on the grounds discussed above, we will not

because it voluntarily paid the settlement to Eddis and (2) BCF has no

Agreement with Grace instead of Burlington Coat Factory of Pennsylvania,
LLC and Burlington Coat Factory Warehouse Corporation.
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