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Horne v. Ebert6/24/2003
Opinion Vote: REVERSED AND REMANDED.
Smart, Jr., P.J., and Ulrich, J., concur.
Opinion:
Appellant Parker Construction, Inc., appeals the grant of summary judgment in favor of respondents James Ebert and David Gwinn, d/b/a Accu Plumbing, and the denial of their cross-motion for summary judgment. Parker contends that the trial court erred in concluding that an indemnification agreement between Parker and Accu did not require Accu to indemnify Parker against claims arising from Parker's own negligence. Parker also claims that the trial court erred in granting summary judgment against Parker on its second claim that Accu breached its contract with Parker by failing to obtain liability insurance that named Parker as an additional insured.
We reverse the summary judgment with regard to the indemnification issue because the claim had been dismissed earlier by the court, which, therefore, deprived the court of jurisdiction to enter judgment upon that claim. In regard to the breach of contract issue, we conclude that a genuine dispute of material fact precluded the trial court's grant of summary judgment, and the judgment below is reversed and the matter remanded for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
The present controversy originated in an accident at a residential construction site. Appellant Parker Construction, Inc., was the general contractor on the project, and Accu Plumbing (hereinafter "Accu"), a business owned by respondents James Ebert and David Gwinn, was one of Parker's subcontractors. Plaintiff Robert A. Horne, an employee of a plumbing supply company, was assisting employees of Accu move a tub/shower unit into the construction site, when he fell through a hole in the floor of the building (the hole had been cut out for installation of a fireplace). The plaintiff brought suit against both Parker and Accu, seeking to recover for injuries sustained in the accident.
Parker subsequently brought a one-count cross-claim against Accu. In its cross-claim, Parker contended that Accu agreed to indemnify Parker for all claims arising out of the work at the construction site, including claims arising out of Parker's own negligence. At a later point, discussed in more detail infra , Parker filed an amended cross-claim asserting a second cross-claim based on breach of contract by Accu. The alleged breach was Accu's failure to have Parker named as an additional insured on Accu's liability policy. Parker settled out of the personal injury case in October 2002. Sometime later, Parker's cross-claims against Accu were severed from that case, and Accu tried the plaintiff's remaining claims to a jury. Accu prevailed at trial against the plaintiff and was found to bear no fault for the plaintiff's injuries. At this point, Parker's claims against Accu remained pending.
Because of our disposition of the summary judgment on the indemnity cross-claim it is necessary to set forth, in detail, the somewhat convoluted procedural history.
7/28/99 Parker files Cross-Claim (contractual indemnity alone).
3/8/00 Accu files Motion for Summary Judgment.
5/25/00 Accu's Motion for Summary Judgment is denied.
7/10/00 Accu files Motion to Reconsider regarding the denial of its motion for summary judgment.
8/29/00 Parker files Motion to File Amended Cross-Claim. The amended cross-claim reasserts the contractual indemnity claim and adds a second count for breach of contract arising out of Accu's failure to make Parker an additional insured under its liability policy.
9/11/00 "Partial" Summary Judgment entered on Accu's original motion for
Page 1 2 3 4 Missouri Personal Injury Attorneys
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