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FabArc Steel Supply5/20/2005
ires a causal connection between the damages and an act or omission of the subcontractor or some default of the subcontractor as an indemnity requirement."
(Footnotes omitted.)
CCSI's argument is that the arising-out-of-work provision in the subcontract requires that some causal connection be established between the work and operations it performed and Evodio Sanchez's death. It argues that because the evidence was undisputed that the wall that collapsed onto Evodio was not at the point of construction where it was appropriate for CCSI to weld angle clips onto the horizontal beam above the wall and, moreover, because CCSI had never been notified that it was time for it to weld any angle clips onto the beam, "Sanchez's death could not have arisen from CCSI's work ...."
Our independent research has located only one Alabama case discussing in any way the meaning to be accorded to an indemnification clause similar to the one under consideration here. In Brown Mechanical Contractors, Inc. v. Centennial Insurance Co., 431 So. 2d 932 (Ala. 1983), this Court interpreted a provision indemnifying the subcontractor "'as to and from all liability, claims, lawsuits and demands for personal injury and property damage arising out of work undertaken or to be performed by the Subcontractor, its employees, agents and subcontractors, and arising out of any other operation no matter by whom performed for and on behalf of the Subcontractor." 431 So. 2d at 945 (emphasis omitted). This Court concluded that because the subcontractor's "welding was the source of the fire" that caused the property damage, the general contractor's liability could be viewed as "'arising out of' [the subcontractor's] work in the sense that the fire and [the contractor's] related tort liability would not have come about but for [the subcontractor's] welding." 431 So. 2d at 945. FabArc does not contend in its briefs to this Court that any work or operation performed by CCSI caused the wall to collapse. FabArc acquiesces in CCSI's stated position that the wall had not reached the stage of completion where it was appropriate for angle clips to be welded to the overhead horizontal beam and that, independent of that fact, no one had ever notified CCSI that it was time to install the angle clips. CCSI adduced substantial evidence in support of its summary-judgment motion indicating that the collapse of the wall did not in fact arise out of any work or operation performed by it with respect to the installation of angle clips, because the time for the installation of those clips had not arrived.
Our research of authority beyond this State has located discussions of the term "arising out of" in several legal treatises and texts, which, in turn, discuss cases from other jurisdictions. These include § 15 of the same A.L.R.3d annotation which CCSI quoted § 13, i.e., Maurice T. Brunner, Annotation, Liability of Subcontractor upon Bond or Other Agreement Indemnifying General Contractor Against Liability for Damage to Person or Property, 68 A.L.R.3d 7 (1976); 3 Philip L. Bruner & Patrick J. O'Connor, Jr., Bruner and O'Connor on Construction Law §§ 10:58, 10:61, 10:63, 10:65, and 10:67 (2002); Dwight G. Congra et al., Construction Accident Litigation § 7:4 (2d ed. 2002); Debra S.P. Cheng, Recent Decisions: The Maryland Court of Appeals (pt. III), 58 Md. L. Rev. 604, 681 (1999); Joseph P. Musacchio, Contribution and Indemnity, in 2 Massachusetts Tort Law Manual, Ch. 16 (2002); and George Chamberlin, Cause of Action to Enforce Contractual Right to Indemnification Respecting Personal Injury Claim, in 7 Causes of Action 509 (2d ed. 1995). These sources reflect that different courts have accorded different treatment to so-called "work
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