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Jackson v. Associated Scaffolders and Equipment Company9/3/2002
PUBLISHED
On 27 October 1997, third-party defendant Comfort Engineers, Inc., contracted with third-party plaintiff Associated Scaffolders and Equipment Company, Inc., for Associated to erect a scaffold on the campus of the University of North Carolina at Chapel Hill. The scaffold was to be used by Comfort to install an exhaust system at the Medical Sciences Building. The agreement between Comfort and Associated for the erection of the scaffold was memorialized in a written rental agreement prepared by Associated.
While working on the installation project, Comfort employee Jeremy S. Jackson, fell from the scaffold, and died as a result of the fall. Through its insurer, Comfort paid workers' compensation benefits to Jackson's estate.
On 14 April 1999, a representative of Jackson's estate instituted a wrongful death action against Associated and Van Thomas General Contractors, Inc. On 2 July 1999, Associated filed a third-party complaint against Comfort claiming contractual indemnification and breach of contract. Comfort made a motion for judgment on the pleadings pursuant to Rule 12(c) of the North Carolina Rules of Civil Procedure. This matter came on for hearing at the 13 March 2000 session of Durham County Superior Court with the Honorable James C. Spencer, Jr., presiding. By order filed 17 March 2000, Comfort's Rule 12(c) motion was granted.
On 11 December 2000, Jackson's estate settled its suit with Associated and Van Thomas; and that case was voluntarily dismissed with prejudice. On 10 January 2001, Associated filed notice of appeal from the order granting Comfort's Rule 12(c) motion.
Pursuant to Rule 12(c) of the North Carolina Rules of Civil Procedure, a court may dispose of claims or defenses when the lack of merit of the claim or defense is apparent upon review of the pleadings. See N.C. R. Civ. P. 12(c); Brisson v. Kathy A. Santoriello, M.D., P.A., 134 N.C. App. 65, 67, 516 S.E.2d 911, 913 (1999), review allowed, 351 N.C. 99, 540 S.E.2d 351, aff'd in part as modified, 351 N.C. 589, 528 S.E.2d 568 (2000). The granting of judgment on the pleadings is proper when there does not exist a genuine issue of material fact, and the only issues to be resolved are issues of law. Brisson, at 67, 516 S.E.2d at 913. In reviewing a motion for judgment on the pleadings, the court must consider the evidence in the light most favorable to the non-moving party, accepting as true the factual allegations as pled by the nonmoving party. Id. at 67-68, 516 S.E.2d at 913.
I. Indemnification Clause
First, Associated argues that the North Carolina Workers' Compensation Act explicitly recognizes a third-party's right to enforce an express contract of indemnity against an employer. Associated argues that an indemnity provision in a construction contract is valid and enforceable, and is not barred by N.C.G.S. § 22B-1, insofar as it does not purport to indemnify the indemnitee (Associated) for the indemnitee's own negligence. (Both parties concede that the contract at issue is a construction contract.) Associated states that the indemnification clauses on which it relies, does not purport to indemnify Associated for its own negligent acts, but only seeks indemnification for Comfort's negligent acts. In addition, Associated argues that its negligence has not been established as a matter of law, and judgment on the pleadings was inappropriate. We disagree.
N.C.G.S. § 22B-1 (2001) provides in pertinent part: Any promise or agreement in, or in connection with, a contract or agreement relative to the design, planning, construction, alteration, repair or maintenance of a building, structure, highway, road, appurtenance or appliance, incl
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