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Heritage at Deer Creek Associates8/8/2005
dent of Kirtley-Cole. Specifically, Heritage cites to portions of Kirtley's deposition in which he was asked, 'what is your understanding of the term 'performance of the work?'' After an objection, Heritage rephrased the question as, 'what is the work that is being referenced there?' Kirtley responded that Kirtley-Cole was indemnifying Heritage against things that arise out of its performance of the work.
Kirtley's current and subjective opinion of the agreement's meaning is not germane to the question before the court concerning the objective manifestations of intent by the parties at the time the contract was formed. Additionally, Kirtley's statement does nothing to clarify the scope of the indemnity agreement because there is no dispute that its duty arose out of its performance of the work. Thus, this portion of Kirtley's testimony is not helpful, and Heritage has not pointed to other relevant portions. The superior court did not err by excluding the deposition for purposes of the summary judgment motions.
Heritage also challenges the court's decision to exclude its expert reports on the scope of damage and cost of repair. But these reports were under a protective order at Heritage's request. Kirtley-Cole did not have access to the documents through discovery. Out of fairness to the defendants, the court struck the documents from the record and lifted the order, but stayed discovery until after this appeal. In light of the protective order, the court did not err by excluding the evidence for purposes of the summary judgment motions.
After viewing the extrinsic evidence in Heritage's favor, we conclude that the indemnity agreement does not cover losses stemming from construction defects. It is unreasonable to interpret 'injury or destruction to tangible property' to include claims stemming from poor craftsmanship. Therefore, we hold that Kirtley-Cole does not have a duty to indemnify
Heritage for its Condominium Act violations.
Heritage is not left without a vehicle for seeking reimbursement.
Heritage's contract and warranty claims against Kirtley-Cole are still being litigated. If Heritage prevails, it will recover damages caused by
Kirtley-Cole's performance of the work.
AFFIRMED.
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