Morgan v. Harnischfeger Corp.2/20/2002
Argued: December 3, 2001
HRI, Inc., (HRI) appeals from an order of the Court of Common Pleas of Luzerne County, wherein the court ordered HRI to indemnify the Pennsylvania Turnpike Commission (Commission) for injuries sustained by Paul and Roxanne Morgan (plaintiffs). HRI presents three issues for our consideration. First, whether an indemnity clause between itself and the Commission is enforceable. Second, whether the doctrine of latches bars HRI from enforcing an indemnity clause between itself and American Asphalt Paving Company (American Asphalt). And third, whether the indemnity provision between itself and American Asphalt is enforceable if the doctrine of laches does not apply. For the reasons that follow, we affirm the trial court's order.
In 1989, the Commission contracted with HRI to perform certain highway repairs. HRI thereafter hired American Asphalt to handle a portion of the construction. That same year Paul Morgan, one of American Asphalt's employees, was seriously injured when he was pinned beneath a toppled crane. Plaintiffs filed suit against HRI, the Commission, and eight other defendants, but not against American Asphalt. In its answer and new matter, the Commission asserted a cross- claim against HRI on the basis of an indemnity provision in their contract (the primary contract). That provision reads in relevant part:
Section 107 - LEGAL RELATIONS AND RESPONSIBILITY TO THE PUBLIC 107.14 Indemnity . . .
shall assume the entire responsibility and liability for any damage or injury of any kind or nature whatever (including death resulting therefrom) to all persons, whether employees of or otherwise, and to all property caused by, resulting from, arising out of, or occurring in connection with the execution of the work of , and if any claims for such damage or injury, (including death resulting therefrom) be made or asserted, whether or not such claims are based upon the alleged active or passive negligence or participation in the wrong of the Commission, its Commissioners, agents, servants, and/or employees (herein collectively the "Commission") or upon any alleged breach of any statutory duty or obligation on the part of the Commission; agrees to indemnify and hold harmless the Commission, from and against any and all such claims, loss, costs, expense, liability, damage or injury, including legal fees, interest, penalties, and disbursements that the Commission may directly or indirectly sustain, suffer or incur as a result therefrom and shall assume, on behalf of the Commission upon demand, the amount of any judgment that may be entered against the Commission, individually, jointly, or severally in any such action . . . .
Primary contract, Section 107.14. Notably, the Commission did not join American Asphalt as an additional defendant. However, several months later, HRI filed a joinder complaint against American Asphalt. HRI likewise based its claim on an indemnity provision in its contract with American Asphalt (the subcontract). The subcontract's indemnity provision reads as follows:
IDEMNIFICATION OF AND [THE COMMISSION] FROM ALL LIABILITY - [American Asphalt] shall have charge of the entire work until completion and acceptance, and shall alone be liable for and shall pay all loss or damage caused by him or by his servants, agents or employees to property, buildings or adjacent work and for any accident to persons that may occur during the performance of the work covered by this contract or at any time thereafter as a consequence of the performance of said work. [American Asphalt] shall observe all state and municipality laws, ordinances, and regulations and shall defend and save harmless and the [Com
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