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United Cable Television of Jeffco Inc. v. Montgomery LC Inc.11/29/1996
In this indemnification action, plaintiff, United Cable Television of Jeffco, Inc., (United) appeals the dismissal before trial of its indemnity claim against defendant, Montgomery LC, Inc., f/k/a Montgomery Line Construction Company (Montgomery). We affirm in part, reverse in part, and remand for further proceedings.
In 1984, United hired Montgomery to remove television cables attached to utility poles owned by Public Service Company (PSC). A Montgomery employee was injured when he cut a cable and the pole on which he was standing fell to the ground. The employee sued PSC, claiming that the pole had not been properly maintained. PSC claimed at trial that the employee's injuries were not caused by its failure properly to inspect or maintain the utility pole, but were the result of his actions when removing the television cables.
The jury returned a verdict against PSC, attributing 85 percent negligence to PSC under a comparative negligence analysis. PSC then sought indemnification from United under an express indemnity contract clause in a pole license agreement between United and PSC. PSC also filed an indemnity claim against Osmose Wood Preserving, Inc. (Osmose), with whom PSC had contracted to maintain and inspect its poles. PSC later settled the judgment in favor of Montgomery's employee for a lesser amount.
At the trial on PSC's claim for indemnification against United, the court held that PSC's indemnification action was not precluded by the exclusive remedy provision of the Workers' Compensation Act (Act). This judgment was later affirmed in Public Service Co. v. United Cable Television of Jeffco, Inc., 816 P.2d 289 (Colo. App. 1991), rev'd on other grounds, 829 P.2d 1280 (Colo. 1992).
Following a settlement of PSC's indemnity claim against United, PSC assigned its indemnity claim against Osmose to United. United sued Osmose pursuant to its assignment from PSC and, in a separate action, sued Osmose and Montgomery to recover its settlement payment to PSC. These district court actions were consolidated.
United's initial claim against Osmose and Montgomery was based solely on the recovery from PSC awarded to Montgomery's employee, and advanced only the common law theories of contribution, indemnity, unjust enrichment, and equitable relief. United initially presented no claim based on any express contractual agreement between the present parties or their predecessors in interest.
Montgomery moved for dismissal on the pleadings, arguing that the Act precluded United from asserting a claim against Montgomery. In response to Montgomery's motion to dismiss, United claimed that an agreement between Montgomery and United existed, that the agreement contained an express indemnity provision, but that many documents, including all copies of the agreement between United and Montgomery, had been discarded during the course of an expansion of United's office. United presented evidence in the form of affidavits and deposition testimony regarding the existence and terms of the agreement. Montgomery denied that an indemnification agreement existed. After allowing United additional time to present the agreement or a copy thereof, the court dismissed United's indemnity claim with prejudice. This appeal followed.
I.
On appeal, United argues that it should have been allowed to present evidence at trial of an express indemnification agreement, and also that an implied contract to indemnify arose from the conduct of the parties. We first address United's express contract argument.
A. The Express Contract Exception to the Exclusive
Remedy Clause of the Act<
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