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FabArc Steel Supply5/20/2005
FabArc Steel Supply, Inc. ("FabArc"), appeals a summary judgment entered by the Morgan Circuit Court for Composite Construction Systems, Inc. ("CCSI"), and the denial of FabArc's cross-motion for summary judgment against CCSI, all with respect to FabArc's third-party action against CCSI in litigation arising out of a death at a construction site. We affirm in part, reverse in part, and remand.
Shimizu America Corporation ("Shimizu") was the general contractor for a commercial construction project near Decatur, Alabama, known as the "Toray project." Evodio Sanchez, an employee of J&J Masonry, a subcontractor on the Toray project, was killed on April 13, 1998, when a masonry wall collapsed and fell on him following the removal of adjacent scaffolding. Cynthia Sanchez, as the personal representative of Evodio Sanchez's estate, filed a wrongful-death action against Shimizu, Don Chambers (the project superintendent for Shimizu), and various fictitiously named parties. By amendment filed seven months later, on December 7, 1999, Cynthia substituted FabArc, also a subcontractor on the Toray project, for one of the fictitiously named parties. Under its subcontract with Shimizu, FabArc had agreed to furnish and install the structural steel required for the job . Because FabArc was solely a steel fabricator, it had subcontracted to CCSI, a steel-erection company, the installation portion of FabArc's subcontract with Shimizu. Specifically, CCSI agreed "to furnish all labor, equipment, and insurance necessary to unload and complete the erection" of the structural steel called for by the subcontract between Shimizu and FabArc. Thus, as between FabArc and CCSI, FabArc retained responsibility for providing the steel components and delivering them to the job site, and CCSI assumed responsibility for unloading the steel and then installing it when and as called for by the Shimizu-FabArc subcontract.
The complaint alleged the following as to FabArc:
"Defendant FabArc and any employees and/or agents thereof, negligently or wantonly failed to provide and/or install proper and adequate supports, anchors, and fasteners to secure and stabilize the masonry wall which collapsed and killed Plaintiff's decedent, Evodio Sanchez. Said negligent and wanton conduct was a proximate cause of the wrongful death of Evodio Sanchez."
Shimizu asserted a cross-claim against FabArc for indemnity based on a clause in their contract under which FabArc had agreed to indemnify and hold harmless Shimizu "from and against all claims, damages, loss and expenses, including but not limited to attorney's fees, arising out of or resulting from performance of the Subcontractor's Work provided that:
"(1) Any such claim, damage, loss, or expense is attributable to bodily injury, sickness, disease or death, or injury to or destruction of tangible property (other than the Subcontractor's Work itself) including the loss of use resulting therefrom to the extent caused or alleged to be caused in whole or in any part by any negligent act or omission of the Subcontractor or anyone directly or indirectly employed by the Subcontractor or anyone for whose acts the Subcontractor may be liable, regardless of whether it is caused in part by a party indemnified hereunder."
FabArc, in turn, filed a third-party complaint against CCSI seeking indemnification for any damages that might be directly imposed on FabArc in the action and any for indemnity FabArc might be determined to owe to Shimizu. Additionally, FabArc charged that CCSI had "breached its contractual duty by failing to name FabArc Steel an additional insured without exception(s) under its comprehensive liability policy." In those respects, FabA
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