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Jackson v. Associated Scaffolders and Equipment Company9/3/2002
r other persons arising out of or in any way connected with the work done or goods furnished under this [agreement] . . . . Id. at 313, 368 S.E.2d at 438.
This Court held that these provisions were invalid under N.C.G.S. § 22B-1, and were not converted into an "insurance contract" by language requiring that Morgan obtain insurance to cover any such losses. Id. at 316-17, 368 S.E.2d at 439.
The contract language at issue here is not distinguishable in any meaningful respect from the language this Court held void in Miller. In addition, the related agreement under which Comfort leased equipment for the job , contained similar provisions, and included the language, "PURPOSE OF THIS CLAUSE: IT IS THE PURPOSE OF THIS CLAUSE TO SHIFT THE RISK OF ALL CLAIMS RELATED TO THE LEASED PROPERTY TO THE LESSEE [Comfort] DURING THE ENTIRE TERM OF THE LEASE."
Comfort argues that the language which violates N.C.G.S. § 22B-1 is not severable from the remainder of the contract. We agree with this argument since, as Comfort points out, we would be required to add language, rather than simply excise portions of the agreements which violate the statute. See Carson v. National Co., 267 N.C. 229, 233, 147 S.E.2d 898, 901 (1966) ("Courts cannot under the guise of construction rewrite contracts executed by the litigants."). The trial court correctly granted the motion for judgment on the pleadings in favor of Comfort. This assignment of error is therefore overruled.
II. Breach of Contract
Second, Associated argues that its pleadings adequately state a claim that Comfort breached its contract to maintain and use the scaffold in accordance with OSHA and other applicable safety regulations.
"To state a claim for breach of contract, the complaint must allege that a valid contract existed between the parties, that defendant breached the terms thereof, the facts constituting the breach, and that damages resulted from such breach." Claggett v. Wake Forest University, 126 N.C. App. 602, 608, 486 S.E.2d 443, 446 (1997).
However, as previously stated, one of the invalid indemnification provisions is not severable from the contract at issue here, rendering the entire contract invalid. As there can be no breach of contract absent the existence of a valid contract, this assignment of error is overruled.
AFFIRMED.
Judge HUDSON concurs.
Chief Judge EAGLES dissents with a separate opinion.
EAGLES, Chief Judge, dissenting.
I respectfully dissent. I disagree with the majority's conclusion that the illegal part of the contract cannot be severed from the rest of the contract. First, the illegal provision is not a central feature of the contract, so it may be severed. Second, the contract may be fully enforced without the illegal section since no other part of the contract would be affected by removal of the offending paragraph.
All parties concede that Paragraph 15 of the contract is illegal under G.S. § 22B-1, because it indemnifies Associated from its own negligence. The other two indemnification clauses referred to in the majority opinion do not violate the mandate of G.S. § 22B-1. Paragraphs 16 and 17 of the contract indemnify the lessor for liability for personal injury as a result of the lessee's failure to comply with safety regulations. Since these provisions are enforceable, I vote to sever the unenforceable paragraph and leave the remainder of the contract intact.
First, the indemnity agreement in Paragraph 15 of the contract is not a central feature of the contract. The overall purpose of the contract concerns the lease of scaffolding equipment, not the division
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