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FabArc Steel Supply5/20/2005
er contributed any money on behalf of Shimizu to settle Cynthia's claims against Shimizu, despite demands on them to do so; and neither CCSI nor its liability insurer carrier contributed any money on behalf of FabArc to settle either Cynthia's or Shimizu's claims against it, despite demands on them to do so.
In October 2001 Great American, proceeding as subrogee of Shimizu, filed its "complaint in intervention" in the action, seeking indemnification from FabArc and CCSI under the terms of the indemnification clause in the subcontract between Shimizu and FabArc. As noted earlier, that indemnification clause obligated FabArc to indemnify Shimizu against all claims that, among other things, arose out of FabArc's work, "to the extent [Evodio's death was] caused or alleged to be caused in whole or in part by any negligent act of [FabArc] or anyone directly or indirectly employed by [FabArc] or anyone for whose acts [FabArc] may be liable ...." (Emphasis supplied.) The trial court entered a summary judgment in favor of Great American against FabArc, reasoning, in pertinent part:
"The indemnity provision [in the subcontract between Shimizu and FabArc] is not ambiguous as a matter of law. The plain language of the provision provides an 'either-or' event which triggers FabArc's obligation to indemnify. ... At the time the plaintiff amended her complaint and alleged that the death was proximately caused by the negligent or wanton acts of FabArc and any employees and/or agents of FabArc, FabArc was obligated to indemnify Shimizu from and against the claim of the plaintiff for the death of Evodio Sanchez, including but not limited to attorney's fee."
(Emphasis in original.)
Conversely, the trial court entered summary judgment in favor of CCSI and against Great American, holding that Great American's claim against CCSI was dependent on the theory that Shimizu was an intended third-party beneficiary of FabArc's subcontract with CCSI, whereas Shimizu's contract with FabArc expressly provided that nothing in it would "create any subcontractual relationship between [Shimizu] ... and any lower-tier subcontractor." Accordingly, the trial court held, CCSI owed no duty of indemnity to Shimizu. FabArc appealed the summary judgment against it and in favor of Great American; this Court affirmed that judgment without opinion on June 11, 2004. FabArc Steel Supply, Inc. v. Great American Assurance Co. (No. 1030084, June 11, 2004), ___ So. 2d ___ (Ala. 2004)(table). That judgment has been satisfied by FabArc's insurer by the payment to Great American of the sum of $3,091,369.86 representing the $2,500,000 judgment together with court costs and accrued interest.
On August 6, 2004, the trial court entered companion orders: one entering a summary judgment for CCSI as to all claims made against it by FabArc as third-party plaintiff and the other denying FabArc's cross-motion for final judgment on its third-party claims for indemnity. The court included no findings or rationale in either order; it certified both orders as final, for purposes of appeal, pursuant to Rule 54(b), Ala. R. Civ. P. FabArc appeals from both.
On FabArc's motion, without opposition from CCSI, this Court ordered on October 8, 2004, that the record on appeal in case no. 1030084 be incorporated into the record on appeal in this case; the result is that the combined record the parties rely on in their briefs comprises 6,659 pages.
FabArc's present appeal involves two main issues: First, whether CCSI should indemnify it with respect to (a) its settlement of the claims Cynthia asserted directly against it and (b) its payment of the indemnification claims Great American successfully asserted a
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