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George Sollitt Corp. v. Howard Chapman Plumbing & Heating Inc.9/22/1992
The George Sollitt Corporation (Sollitt) appeals from a declaratory judgment in favor of Howard Chapman Plumbing & Heating, Inc. (Chapman), contending that its work subcontract required Chapman to indemnify and defend it in a negligence action brought by one of Chapman's employees. We agree that Chapman has a duty to defend and reverse.
Sollitt entered into a subcontract with Chapman as part of its contract with the State to construct residential units and do site development at the Child Study and Treatment Center at Western State Hospital near Tacoma. Randall Lee Porcher suffered injuries when he received an electrical shock while working for Chapman as a sprinkler fitter on the project. At the time, he was installing a sprinkler system in a subbasement that had standing water. While holding a piece of pipe that was attached to the building, Porcher touched an improperly grounded pump and received a shock that caused him to fall over backward, injuring himself. Porcher and his wife sued Sollitt, the general contractor; the State of Washington, the owner of the facility; and D.W. Close Company (Close), an electrical subcontractor. Porcher alleges that the shock resulted from a defective temporary electric panel that Close installed. The defendants contend that the pump, which Chapman manufactured, caused the shock.
Sollitt and the State moved for summary judgment, arguing that Chapman had a contractual duty to defend and indemnify them. Chapman cross-moved for summary judgment, arguing that it had no such duties. The Superior Court granted Chapman's cross motion, denying that of Sollitt and the State. The sole issue on appeal is whether the rule disfavoring indemnification for one's own negligence precludes enforcement of an indemnity agreement under the tort reform act, which allocates liability proportionately among negligent parties.
This court engages in the same inquiry as the trial court on appeal from summary judgment. Wilson v. Steinbach, 98 Wash. 2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is proper if there are no genuine issues of material fact and the moving party is entitled to prevail as a matter of law. Wilson, at 437. See also Bozung v. Condominium Builders, Inc., 42 Wash. App. 442, 711 P.2d 1090 (1985) (affirming summary judgment in favor of general contractor in personal injury action brought by subcontractor employee).
Sollitt contracted with Chapman in 1985, before passage of the tort reform act of 1986. Chapman agreed to defend and indemnify Sollitt against all claims arising under the agreement. Chapman assumed the entire risk and responsibility for any injuries Chapman's employees sustained during the performance of the subcontract.
Before June 11, 1986, contract indemnity clauses that purported to indemnify against damages resulting from bodily injury in the performance of the contract were void and unenforceable when the injuries resulted from the sole negligence of the indemnitee. Former RCW 4.24.115. Indemnity provisions in contracts entered into after June 11, 1986, were also void and unenforceable for injuries resulting from the indemnitee's sole negligence, but under certain circumstances were declared valid and enforceable, to the extent of the indemnitor's negligence, when the injuries resulted from the concurrent negligence of the indemnitee and the indemnitor. RCW 4.24.115.
Sollitt contends that because Porcher's complaint alleges the concurrent negligence of Sollitt and Close, Chapman has a duty to defend and indemnify. It argues that under the former statute,
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