Scott v. Seppala Construction CV-94-535-JD 07/31/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Richard M. Scott, et al.

v. Civil No. 94-535-JD

Seppala Construction Co., Inc., et a l .

O R D E R

The plaintiffs, Richard and Gloria Scott, initiated this

action against the defendant and third-party plaintiff, Seppala

Construction Co. Inc., seeking damages for Seppala's negligent

operation of a construction site in Claremont, New Hampshire.

Seppala brought a third-party complaint for contribution and

indemnification against third-party defendants RMD, Inc.,

DeMoulas Supermarkets, Inc., Market Basket, Inc., and Excel

Refrigeration, Inc. Before the court are the motions for summary

judgment filed by RMD (document no. 33) and by DeMoulas, Market

Basket, and Excel (document no. 35) on Seppala's third-party

claims.

Background1

At some point prior to April 15, 1994, Seppala began work as

a general contractor for a construction and renovation project at

1The facts relevant to the instant motion are either not in dispute or have been alleged by Seppala. a DeMoulas Market Basket2 store in Claremont, New Hampshire.

Following the plans for the project, which were drawn up by RMD,

Seppala installed a set of double doors opening from the

mezzanine level to the exterior of the store, approximately

twelve feet above the ground. The plans did not call for the

installation of a landing or stairwell on the exterior of the

building. The doors were installed for the purpose of

facilitating the loading and unloading of heavy eguipment stored

on the mezzanine level of the store and were secured by wire and

lumber.

On April 15, 1994, Richard Scott was working as a

refrigeration and air conditioning mechanic on the mezzanine

level of the building. At some point during that day, the wire

securing the double doors was cut by employees of Excel.

Although Normand Martin, an employee of one of the third-party

defendants, was aware that the wires had been cut, the situation

2The parties dispute the nature of the relationship among the third-party defendants, each of which is a Massachusetts corporation with a principal place of business in Tewksbury, Massachusetts. The third-party defendants claim that DeMoulas Supermarkets, Inc. is a franchisor of grocery stores and a supplier of food products to franchise stores, and that Market Basket, Inc. is a franchisee of DeMoulas Supermarkets. Seppala claims that the third-party defendants are indistinguishable and should be treated as one entity for the purposes of this lawsuit. Seppala also has alleged that RMD, Inc. is the entity that supervised various contractors at the Claremont site, and that Excel Refrigeration, Inc. was one of RMD's subcontractors at the site.

2 had not been addressed when, several hours later, Scott fell

through the doorway and suffered serious injury.

On October 21, 1994, the Scotts filed the instant action,

claiming that Seppala "failed to install an exterior landing,

stairs, barricades or other devices to prevent those coming

through the doorway from falling to the ground" and "failed to

install signs or other warning devices to warn those persons in

the area about the hazards presented." Complaint 55 7, 8.

Seppala subseguently filed a third-party complaint seeking

indemnification from RMD, DeMoulas Supermarkets, and Market

Basket and/or Excel Refrigeration for, inter alia, failing to

provide a working environment that was free from unreasonable

risk and danger. Seppala also seeks contribution from RMD and

DeMoulas for any damages it incurs as a result of the Scotts'

underlying action.

Discussion

The role of summary judgment is "to pierce the boilerplate

of the pleadings and assay the parties' proof in order to

determine whether trial is actually reguired." Snow v.

Harnischfeger Corp.,

(1st Cir. 1993) (guoting

Wynne v. Tufts Univ. Sch. of Medicine,

(1st

Cir. 1992), cert, denied, 113 S. C t . 1845 (1993)), cert. denied.

3 115 S. C t . 56 (1994). The court may only grant a motion for

summary judgment where the "pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law." Fed. R. Civ. P. 56(c) . The party seeking

summary judgment bears the initial burden of establishing the

lack of a genuine issue of material fact. Celotex Corp. v.

Catrett,

(1986); Quintero de Quintero v.

Aponte-Rogue,

(1st Cir. 1992). The court

must view the entire record in the light most favorable to the

plaintiff, "'indulging all reasonable inferences in that party's

favor.'" Mesnick v. General Elec. Co.,

(1st

Cir. 1991) (guoting Griqqs-Ryan v. Smith,

(1st

Cir. 1990)), cert, denied,

(1992). However, once

the defendant has submitted a properly supported motion for

summary judgment, the plaintiff "may not rest upon mere

allegation or denials of [its] pleading, but must set forth

specific facts showing that there is a genuine issue for trial."

Anderson v. Liberty Lobby, Inc.,

(1986) (citing

Fed. R. Civ. P. 56(e)).

4 I. Indemnification

Under New Hampshire law, "one joint tortfeasor can obtain

indemnification, a complete shifting of liability, against

another where the indemnitee's liability is derivative or imputed

by law, or where an express or implied duty to indemnify exists."

Consolidated Util. Equip. Servs., Inc. v. Emhart Mfg. Corp., 12

,

(1983) (citations omitted).

Here, the plaintiff seeks relief under an implied indemnification

theory only. The New Hampshire Supreme Court has stated that an

implied duty to indemnify may exist where (1) the indemnitor has

agreed to perform a service for the indemnitee; (2) the

indemnitor has performed negligently; (3) the result was a

condition that caused harm to a third person in breach of a non­

delegable duty of the indemnitee; and (4) the indemnitee is not

negligent beyond its failure to discover a harmful condition.

Hamilton v. Volkswagen of America,

,

(1984); see also Pond v. Maiercik, No. 94-225-M,, slip

op. at 7-9 (D.N.H. Sept. 29, 1995). "The justification for

finding an implied agreement to indemnify . . . rest[s] on the

fault of the indemnitor as the source of the indemnitee's

liability in the underlying action and, conversely, the

indemnitee's fault in bringing about the dangerous condition."

Hamilton,

,

; see also Jaswell

5 Drill Corp v. General Motors Corp.,

,

(1987) (rationale for implying indemnity agreement

applicable where indemnitor's product was "directly and solely"

responsible for damages and indemnitee's negligence lay only in

failing to discover that product was defective); Morrissette v.

Sears, Roebuck & Co.,

;

(1974)

(right to indemnity arises "where one is legally obligated to pay

an obligation for which another is primarily liable").

A. RMD

RMD argues that summary judgment is warranted on Seppala's

indemnification claim because the Scotts' underlying claim seeks

damages for Seppala's negligence, and not for RMD's conduct. The

argument is unavailing. Although the Scotts' complaint is based

on Seppala's failure to install a landing or stairs or to

barricade the door, Seppala has asserted, inter alia, that it

entered into a contractual agreement to provide services for the

third-party defendants, that RMD designed the doorway, and that

the doorway's negligent design was the sole and direct cause of

Richard Scott's accident. The court finds that RMD has failed to

establish the lack of a genuine issue of material fact concerning

any of the elements of Seppala's indemnification claim.

6 B. DeMoulas

DeMoulas seeks summary judgment on the plaintiff's indem­

nification claim on the ground that it is merely a franchisor and

supplier of grocery stores and had no role in the construction of

any supermarket, including the Claremont site. Demoulas has

submitted a three-paragraph affidavit from its financial vice

president, D. Harold Sullivan, to this effect. Seppala argues

that the third-party defendants are indistinguishable, and has

referred the court, inter alia, to the deposition testimony of

Richard Scott, who testified that he received paychecks from

three of the third-party defendants while performing the same job

as a refrigeration technician, and that RMD had final authority

over any work that he did. The court finds that there are

genuine issues of material fact concerning DeMoulas' involvement

in the construction of the Claremont site and its relationship

with the other third-party defendants.

C. DeMoulas, Market Basket, and Excel

DeMoulas, Market Basket, and Excel seek summary judgment on

Seppala's claims for indemnification on the ground that Seppala

has failed to state a cognizable theory of liability for the

Scotts' losses. However, Seppala's complaint includes

allegations, which the third-party defendants have not rebutted.

7 that employees of the third-party defendants tampered with the

barricade that Seppala had constructed. To the extent Richard

Scott's accident is "directly and solely attributable" to this

tampering and Seppala's negligence arises only from its failure

to discover the hazard created thereby, the court finds that

Seppala's allegations are sufficient to support its claim for

indemnification.

The third-party defendants' motions for summary judgment on

Seppala's indemnification claim are denied.

II. Contribution

Under New Hampshire law,

a right of contribution exists between or among 2 or more persons who are jointly and severally liable upon the same indivisible claim, or otherwise liable for the same injury, death or harm, whether or not judgment has been recovered against all or any of them.

-f(I) (Supp. 1995). The basis for

contribution is each party's share of the obligation,

which

is to be determined "in accordance with the proportionate fault

of each of the parties,"

§ 507:7-e(I)(a) (Supp. 1995).

A. RMD

RMD argues that summary judgment is warranted on Seppala's

contribution claim because Normand Martin was employed by DeMoulas, and not RMD, and because there is no evidence

indicating that the doorway design was the cause of Richard

Scott's accident.

As noted supra, there are genuine issues of material fact

concerning the relationship between DeMoulas and the other third-

party defendants. Accordingly, the court declines to enter

summary judgment in favor of RMD based on RMD's claim that it is

not responsible for the conduct of Normand Martin.

The court also finds that RMD's attempt to evade liability

for its design of the doorway is without merit. The underlying

complaint seeks recovery for, inter alia, Seppala's failure to

install a stairway or a landing outside the doorway. RMD has not

provided any legal or factual support for its assertion that its

failure to include a stairway or landing in its design for the

doorway is not a legal cause of Richard Scott's accident.

RMD's motion for summary judgment on Seppala's contribution

claim is denied.

B. DeMoulas

As the court found supra, Demoulas has failed to establish

that its employees did not tamper with Seppala's barricade, or

that these actions did not cause Richard Scott's accident. The

court also notes that Seppala's complaint includes unrebutted allegations that the accident was caused, at least in part, by

the failure of Normand Martin, who has attested that he was

DeMoulas employee, to eliminate a hazard of which he was aware.

The court finds that there are genuine issues of material fact

concerning these issues, and denies DeMoulas' motion for summary

judgment on Seppala's contribution claim.

Conclusion

The motions for summary judgment of RMD (document no. 33)

and DeMoulas, Market Basket, and Excel (document no. 35) on

Seppala's third-party claims are denied.

SO ORDERED.

Joseph A. DiClerico, Jr. Chief Judge July 31, 1996

cc: Mark J. Ventola, Esguire Dennis L. Hallisey, Esguire Wilfred J. Desmarais Jr., Esguire Joseph M. McDonough III, Esguire

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