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ESTATE OF BRYANT v. ALL TEMPERATURE INSULATION5/17/1996
John R. Bryant was injured in a construction accident in 1992. At the time of his injury, he was employed by Pioneer Electric (Pioneer) and was a statutory employee of Foley Company (Foley).
Bryant filed suit against All Temperature Insulation, Inc., (All Temp), alleging that its negligence was one of the causes of his injuries. He also sued APAC-Kansas, Inc., (APAC), claiming that a crane owned by APAC was negligently operated, thus contributing to his injuries.
APAC joined Foley as a third-party defendant, alleging that Foley was contractually bound to hold APAC harmless from the suit by Bryant. Foley was the general contractor on the project Bryant was working on at the time of his injuries.
After suit had been filed, Bryant died. His estate and his surviving spouse were substituted as parties plaintiff. The crane which was involved in the injuries to Bryant had been leased by Foley from APAC under a written lease agreement. APAC also furnished, under the lease, the operator of the crane, David Powell. The lease agreement between APAC and Foley contained an indemnification clause, which is the focus of this appeal.
The jury returned a damage verdict in favor of Bryant in the amount of $397,534.87. It found All-Temp to have been 92 1/2 percent at fault in causing Bryant's injuries and APAC to have been 7 1/2 percent at fault. The 7 1/2 percent apportionment of fault to APAC caused the trial court to enter judgment against APAC in the amount of $29,815.12. The entire judgment in favor of Bryant has been paid. Consequently, neither Bryant nor All-Temp are parties to this appeal.
After the judgment was entered, APAC sought judgment against Foley for the amount of the judgment and attorney fees and costs
associated with its defense of the action. The claim of APAC against Foley is based upon the lease and indemnification agreement referred to earlier. Both sides filed motions for summary judgment, and the trial court granted summary judgment to Foley and against APAC. APAC appeals.
We reverse, direct that judgment be entered in favor of APAC, and remand for further proceedings.
The trial court's decision was based on uncontroverted facts agreed to by the parties. Foley filed a statement of uncontroverted facts along with the memorandum supporting its motion for summary judgment. APAC conceded all of the material facts set out by Foley in its motion with the exception of Foley's assertion that the crane operator, David Powell, was an employee of APAC at the time of the accident. APAC has continued to deny that Powell was its employee at the time of the accident and argues that question can be decided as a matter of law.
The trial court concluded that the indemnification agreement between APAC and Foley did not require Foley to indemnify APAC. It reached this conclusion citing two basic reasons: (a) the "exclusive remedy" provisions of K.S.A. 44-501; (b) the fact that the agreement itself prohibited APAC from recovering for damages occasioned by reason of its "sole negligence."
The pertinent provisions of the indemnification agreement between APAC and Foley read as follows:
"2. INDEMINIFICATION : Lessee agrees that the equipment and all persons operating such equipment, including Lessor's employees, become employees of, and are under Lessee's exclusive jurisdiction, supervision and control and agrees to indemnify and save Lessor, its employees and agents harmless from all claims for death or injury to persons, including Lessor's employees, and from all loss, damage or injury to property, including the equipment arising in any manner out of Lessee's operation. Lesse
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