2019 Ohio 20
Ohio Ct. App.2019Background
- TQL (broker) contracted with carrier JK & R to transport Contel Fresh's apples; trailer caught fire en route, destroying the cargo.
- TQL reimbursed Contel Fresh $86,240 by offsetting invoices; Contel assigned its claims against JK & R to TQL.
- TQL sued JK & R in state court on breach of contract/indemnification under their broker-carrier agreement (not under the Carmack Amendment).
- Broker-carrier agreement included express indemnification: carrier "agrees to defend, indemnify, and hold broker and customers harmless" for cargo loss arising from carrier negligence.
- JK & R moved for summary judgment; trial court granted it, finding TQL failed to satisfy Globe indemnity factors—specifically that TQL was legally liable to respond to Contel’s claim.
- TQL appealed, arguing (1) the trial court erred on the Globe factors and (2) JK & R never raised the Globe factors in its motion, so TQL lacked notice; the appellate court affirmed summary judgment for JK & R.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TQL can recover under the contract-based indemnity for cargo loss after it paid Contel | TQL says the written indemnity makes JK & R liable for the loss and TQL’s payment to Contel entitles it to indemnity | JK & R says TQL was not legally liable to Contel and TQL paid for business reasons, so Globe indemnity requirements are not met | Court: TQL failed the second Globe factor (no proof it was legally liable to respond), so indemnity claim fails |
| Whether Globe Indemnity factors apply to an express written indemnity clause | TQL: Globe applies only to implied indemnity, not to explicit contractual indemnities | JK & R: Globe factors apply to written indemnities too; Globe governs recovery after voluntary payment/settlement | Court: Globe factors apply to written indemnity; TQL must satisfy them |
| Whether summary judgment was proper on grounds not raised by JK & R (notice issue) | TQL: JK & R never argued Globe factors in its motion, so court erred in deciding on that basis | JK & R: Its pleadings and briefs argued that TQL had no obligation to pay Contel and therefore raised the legal-liability issue | Court: TQL had adequate notice because JK & R argued TQL was not obligated to pay; trial court did not act sua sponte |
| Whether TQL’s evidence (invoice and corporate affidavit) created a genuine issue of material fact on legal liability to Contel | TQL: Invoice and affidavit show TQL was obligated to pay; creates triable issue | JK & R: Affidavit/deposition show no contractual obligation; payment was discretionary/business decision | Court: Evidence was conclusory and deposition contradicted legal liability; no genuine issue exists |
Key Cases Cited
- Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367 (Ohio 1998) (standard for summary judgment review)
- Mitseff v. Wheeler, 38 Ohio St.3d 112 (Ohio 1988) (party must specifically delineate basis for summary judgment)
- Globe Indemn. Co. v. Schmitt, 142 Ohio St. 595 (Ohio 1944) (three-part test for indemnity after voluntary settlement)
- Portsmouth Ins. Agency v. Med. Mut. of Ohio, 188 Ohio App.3d 111 (Ohio Ct. App.) (indemnity principles and bound nonparty rule)