433 Pa. Super. 505; 641 A.2d 315, *; 1994 Pa. Super. LEXIS 1317, **

433 Pa. Super. 505; 641 A.2d 315, *;
1994 Pa. Super. LEXIS 1317, **


FOX PARK CORPORATION, GENERAL INTERIORS CONSTRUCTION COMPANY, INC., HERBERT
HOLLAND AND ANNIE HOLLAND v. JAMES LEASING CORP., FORMERLY KNOWN AS JAMES
FLOWERS, INC., FRANKFORD CONCRETE COMPANY, INC., STANDARD BUILDERS, INC.,
THE PELTZ COMPANY, RELIANCE SECURITY SERVICE INC., AND BACH SECURITY
SYSTEMS, INC. v. ROBINSON ALARM COMPANY, IVAN BLITZ T/A IVAN BLITZ GROUP,
STEVEN J. HELZNER, P.E. LIONEL LEISURE, INC., D/B/A KIDDIE CITY v. JAMES
LEASING CORP., FORMERLY KNOWN AS JAMES FLOWERS, INC., FRANKFORD CONCRETE
CO., INC., FIRE PROTECTION INC., RELIANCE SECURITY SYSTEMS, INC., AND BACH
SECURITY SYSTEMS, INC. v. FOX PARK CORPORATION, CARPET WAREHOUSE, INC.,
MORTON FLOOR COVERING CO., ROBINSON ALARM CO., IVAN BLITZ, T/A THE BLITZ
GROUP, STEVEN J. HELZNER, P.C. ; LIONEL LEISURE, INC., D/B/A KIDDIE CITY v.
IVAN BLITZ T/A THE BLITZ GROUP AND STEVEN J. HELZNER v. JAMES LEASING CORP.,
FORMERLY KNOWN AS JAMES FLOWERS, INC. FRANKFORD CONCRETE COMPANY, INC.,
STANDARD BUILDERS, INC., PELTZ FIRE PROTECTION INC. A/K/A THE PELTZ COMPANY,
RELIANCE SECURITY SERVICE, INC., BACH SECURITY SYSTEMS, INC., ROBINSON ALARM
COMPANY AND FOX PARK CORPORATION; MERION FIRE COMPANY OF ARDMORE v. FOX PARK
CORPORATION, LIONEL LEISURE INC., JAMES LEASING CORP., FORMERLY KNOWN AS
JAMES FLOWERS INC., FRANKFORD CONCRETE COMPANY INC., STANDARD BUILDERS INC.,
THE PELTZ COMPANY, RELIANCE SECURITY SERVICE INC., BACH SECURITY SYSTEMS
INC., CARPET WAREHOUSE OUTLET INC., IVAN BLITZ, INDIVIDUALLY AND T/A THE
BLITZ GROUP, STEPHEN J. HELZNER, ROBINSON ALARM COMPANY v. BOAS BOX COMPANY;
BOAS BOX COMPANY v. JAMES LEASING CORP., FORMERLY KNOWN AS JAMES FLOWERS
INC., FRANKFORD CONCRETE COMPANY INC., STANDARD BUILDERS INC., THE PELTZ
COMPANY AND PELTZ FIRE PROTECTION INC., RELIANCE SECURITY SERVICE INC., BACH
SECURITY SYSTEMS INC., IVAN BLITZ, I/T/A THE BLITZ GROUP, STEVEN J. HELZNER,
P.E., MORTON FLOOR COVERING COMPANY, INC. v. ROBINSON ALARM COMPANY, FOX
PARK CORPORATION; MORTON FLOOR COVERING CO., INC. D/B/A CARPET WAREHOUSE
OUTLET v. JAMES LEASING CORP., F/K/A JAMES FLOWERS INC., FRANKFORD CONCRETE
COMPANY INC., STANDARD BUILDERS INC., THE PELTZ FIRE PROTECTION COMPANY,
RELIANCE SECURITY SERVICE INC., BACH SECURITY SERVICE INC., IVAN BLITZ T/A
THE BLITZ GROUP, STEVEN HELZNER, P.E., FOX PARK CORPORATION; COMMERCIAL
UNION INSURANCE COMPANY AS SUBROGEE OF ELEANOR DOLAN AND ELEANOR DOLAN AS
EXECUTRIX OF THE ESTATE OF JOHN DOLAN, T/A DOLAN ELECTRIC v. FOX PARK
CORPORATION, JAMES LEASING CORP. FORMERLY KNOWN AS JAMES FLOWERS INC.,
FRANKFORD CONCRETE COMPANY, STANDARD BUILDERS INC., PELTZ FIRE PROTECTION
INC., RELIANCE SECURITY SERVICE INC., BACH SECURITY SYSTEMS INC., LIONEL
LEISURE CORP., T/A C.T. CORPORATION, CARPET WAREHOUSE INC., MORTON FLOOR
COVERING CO., ROBINSON ALARM COMPANY, IVAN BLITZ T/A IVAN BLITZ GROUP,
STEVEN J. HELZNER, P.E. APPEAL OF: ROBINSON ALARM COMPANY

No. 00988 Philadelphia 1993

SUPERIOR COURT OF PENNSYLVANIA

433 Pa. Super. 505; 641 A.2d 315; 1994 Pa. Super. LEXIS 1317

PRIOR HISTORY: Appeal from the Order Entered February 5, 1993, in the Court
of Common Pleas of Delaware County, Civil No. 89-12705, 89-14013, 90-10907,
90-17980, 90-17983, 90-18114, 90-17915. Before SERENI, J.

DISPOSITION: Affirmed.


CASE SUMMARY

PROCEDURAL POSTURE: Appellant alarm company sought review of an order from
the Court of Common Pleas of Delaware County (Pennsylvania), which absolved
appellant of liability for a fire in a commercial building. Appellant
contended that it was entitled to reimbursement from appellee building owner
for settlements appellant paid to two tenants of the building.


OVERVIEW: A backhoe struck and ruptured a commercial building's water main
rendering the sprinkler and alarm systems inoperable. Subsequently, a fire
caused substantial damages. In the ensuing litigation among tenants,
contractors, and other entities, appellant alarm company was absolved of
liability. Appellant sought review because it had already paid settlements
to two tenants. Appellant argued that it was entitled to indemnification
from appellee building owner under its installation contract with appellee.
The court disagreed. There was no finding that appellant was negligent. Even
if appellant's negligence was presumed, the law required a narrow
interpretation of such indemnification provisions. The trial court went too
far in holding that the indemnity provision was so broad as to render it
unenforceable. Nevertheless, appellant's presumed negligence, a failure to
produce a copy of the underground utility plans, was well beyond the scope
of the installation contract and, therefore, could not trigger a duty to
indemnify. Accordingly, the trial court properly denied indemnification to
appellant, and the judgment was affirmed.


OUTCOME: The court affirmed the judgment finding that appellant alarm
company was not liable for a fire and that, therefore, appellant was not
entitled to reimbursement from appellee building owner of settlements
appellant already paid to tenants. There was no finding that appellant was
negligent but even if there was, such negligence was well beyond the scope
of the indemnity clause of the parties' contract.
COUNSEL: Nancy Campbell, Ardmore foR appellant.

Elaine M. Rinaldi, Philadelphia, for Fox Park and General Interiors,
appellees. Rochelle M. Fedullo, Philadelphia, for Peltz, appellee. Leonard
R. McMonigle, Jr., Philadelphia, for Reliance, appellee. Andrew N. Schwartz,
Philadelphia, for Blitz, appellee. Saul H. Krenzel, Philadelphia, for Merion
Fire, appellee. Angelo L. Scaricamazza, Jr., Philadelphia, C.T. Corp.,
appellee. Richard S. March, John C. Farrell and Edwin L. Scherlis,
Philadelphia for Boas Box, appellee.

Harry J. Sher, Philadelphia, for participating party.

JUDGES: BEFORE: ROWLEY, P.J.; OLSZEWSKI and TAMILIA, JJ.

OPINIONBY: OLSZEWSKI

OPINION:

[*316] OPINION BY OLSZEWSKI, J.:

It is rare that a party appeals a trial court decision absolving it from
liability. The Robinson Alarm Company, however, asks us to find it negligent
and liable for certain damages caused by a fire in the Fox Park Complex of
Ardmore, Pennsylvania. Robinson makes this strange request because it has
already settled claims against it, and now seeks reimbursement from Fox Park
Corporation, [*317] pursuant to their contract in which Fox Park agreed to
indemnify Robinson Alarm for the latter's negligence.

Fox Park owns the Fox Park Complex, a building with a number of commercial
tenants. The building had an automatic sprinkler system installed. Fox Park
engaged Robinson Alarm to install, maintain and operate a signaling system,
which monitored and responded to fluctuations in the sprinkler system's
water supply, and performed other alarming functions. The sprinkler
monitoring system required water in the sprinkler's pipes to operate--it
[**2] could not function if the sprinkler system was dry.

In April of 1988, Fox Park began renovations on its building, hiring
Standard Builders as general contractor. By October, Standard had subbed out
the excavation work to Frankford Concrete, which in turn hired James
Flowers, Inc. to remove some concrete footers with a backhoe and piston ram.
Although the excavators should have known the location of all utility lines,
the backhoe struck and ruptured the building's water main. Water had to be
shut off, rendering both the sprinkler system and Robinson's alarm system
inoperable.

As fate would have it, a fire broke out a few days later. With the sprinkler
system down, it caused much damage. Fox Park sued the various contractors
and subcontractors; the building's tenants joined in the litigation fiesta.
Soon every entity involved was suing or being sued by someone else. Two of
the building's tenants, Lionel Leisure and Morton Floor Covering, had sued
The Peltz Company, which was responsible for sprinkler repair. Peltz decided
to join Robinson Alarm as an additional defendant before the two-year
statute of limitations ran in Lionel Leisure's case; in the Morton Floor
Covering case, Peltz [**3] joined Robinson after the statute ran. By late
1990, the myriad lawsuits were consolidated for discovery and trial.

Robinson Alarm was not responsible for the sprinkler system, and nobody ever
faulted its alarm system, which relied on a hydrated sprinkler system to be
functional. Rather, Robinson happened to have a copy of the utility plan
showing the location of the underground water main; if Robinson had produced
this plan, perhaps the main never would have been ruptured and the fire
would have caused minimal damage. But Robinson was never found to be
negligent for failing to produce the plan, because it settled before trial
with Lionel Leisure for $ 145,000 and with Morton Floors for $ 48,000. The
issue of Robinson's hypothetical liability never went to the jury. Hence,
the record does not reveal if Robinson was under any duty to produce its
copy of the utility plan, or even if it was asked to do so.

The jury eventually returned a verdict apportioning liability between Fox
Park and Standard Builders. At the post-trial motions' hearing, Robinson
Alarm sought indemnification under its contract with Fox Park for the
settlement money it paid to escape this litigation. The trial court [**4]
denied Robinson's motion, ruling that the indemnification clause in
Robinson's contract with Fox Park did not require Fox Park to reimburse
Robinson. We agree.

In reviewing the trial court's decision, we defer to its factual findings.
Under the trial court's findings, the only possible theory of liability for
Robinson would have been negligence for failing to produce a copy of the
utility plans. Trial court opinion 12/16/93 at 5; appellant's brief at 15.
The trial court did not determine whether Robinson was under any duty to
produce these plans, but only stated that trial testimony on this issue
differed. Id. If we could be certain that Robinson was not negligent for
failing to produce the plans, our inquiry would end. Fox need not indemnify
Robinson's settlement payments if Robinson was never liable to anyone in the
first place. See Martinique Shoes, Inc. v. New York Progressive Wood Heel
Co., 207 Pa.Super. 404, 408, 217 A.2d 781, 783 (1966) (party which settles
claims and then seeks indemnification must be able to prove its liability
and the reasonableness of its settlement payments). Robinson could only
blame itself for leaping to [**5] settle despite its own non-liability.

So like the trial court, we will suppose arguendo that Robinson was
negligent. The question now becomes whether Fox Park is [*318] obliged to
indemnify Robinson pursuant to their signaling system contract. This
contract deals only with Robinson's duty to install and maintain the
signaling system; it requires Fox Park to maintain the underlying sprinkler
system. It contains an indemnification clause of remarkable breadth:
[FOX PARK] agrees to indemnify ROBINSON and hold ROBINSON harmless from and
against all claims, demands, liabilities, damages, losses, expenses and law
suits which may be asserted against ROBINSON by any person not a party to
this agreement for the installation, maintenance, operation or non-operation
of the Signaling System or the sole or joint or several negligent conduct of
ROBINSON or ROBINSON's agents, servants or employees, including the payment
of all damages, expenses, costs, or attorney's fees, whether these claims,
demands or law suits be based upon alleged sole, joint, or several active or
passive negligence, or strict liability or product liability or any other
theory of responsibility on the part of ROBINSON's [**6] agents, servants,
or employees.


R. 60 (emphasis added).

Taken literally, this clause would constitute a policy of comprehensive
liability insurance, since it would require Fox Park to indemnify Robinson
for any act of negligence whatsoever. Our law, however, requires us to
narrowly interpret indemnity provisions, in light of the parties' intentions
as evidenced by the entire contract. First National Bank of Spring Mills v.
Walker, 289 Pa. 252, 137 A. 257 (1927); Ruzzi v. Butler Petroleum Co., 527
Pa. 1, 588 A.2d 1 (1991).

The trial court concluded that this indemnity provision was so broad as to
render it unenforceable. Trial court opinion 12/16/93 at 8; appellant's
brief at 18. We hesitate to go so far. It is precisely because courts so
disfavor indemnity contracts that those who seek indemnity must draft
broadly, lest our narrow interpretations deny them the sought-after
indemnity. See Husak v. Berkel, 234 Pa.Super. 452, 341 A.2d 174 (1975). It
would be capricious to only enforce those indemnity contracts which are
drafted with just the right [**7] scope, and reject anything else that we
feel is the slightest bit too narrow or too broad.

The trial court also held that if this indemnity provision were enforceable,
it would not cover Robinson's averred negligence in this case. The contract
is entirely about the installation and maintenance of Robinson's signaling
system; the operation and maintenance of the sprinkler system is left to Fox
Park. The contract by no means requires Robinson to produce a copy of the
underground utility plans when asked, or implies the slightest obligation
upon Robinson in connection with the water main which broke during
excavation. Even if Robinson should have produced a utility plan before
excavation began, Robinson's failure to do so is well beyond the scope of
this contract and, thus, cannot trigger Fox Park's duty to indemnify
Robinson under it. To hold otherwise would make Fox Park liable for any act
of negligence by Robinson whatsoever, which our indemnification laws will
not allow.

We therefore agree that the trial court properly denied Robinson's motion
for indemnification on this basis. Trial court opinion 12/16/93 at 9-10;
appellant's brief at 19-20.

Order affirmed.

TAMILIA, J. Concurs in [**8] the Result.