518 N.E.2d 53 | Ohio Ct. App. | 1986
This cause came on to be heard upon an appeal from the Court of Common Pleas of Butler County.
This is an appeal by third-party defendant-appellant Michael Hubbell, d.b.a. Fairbanks Mobile Wash (hereinafter "Fairbanks"), from a decision of the Court of Common Pleas of Butler County which granted the motion for judgment on the pleadings against Fairbanks of third-party plaintiff-appellee Armco, Inc. (hereinafter "Armco").
On July 13, 1983, plaintiff Edward L. Lamb, Jr. was working for Fairbanks at an Armco facility removing mud from a tractor-trailer dump bed belonging to Armco. While he was cleaning the trailer's bed, an Armco employee unexpectedly raised it causing Lamb to tumble from it and thereby suffer injury.1
On July 9, 1985, Lamb filed suit against Armco for negligence. Armco responded, inter alia, by filing a third-party complaint against Fairbanks for indemnity based on the terms of a contract between Armco and Fairbanks, which provided, in pertinent part, that Fairbanks would indemnify Armco against the negligent acts of Armco employees which caused injury to Fairbanks employees.
On October 11, 1985, in response to Armco's third-party complaint, Fairbanks filed a counterclaim against Armco seeking contribution or indemnity from Armco for any damages awarded Lamb.
On December 3, 1985, Armco moved for judgment on the pleadings asking the court to find that Armco had a valid indemnity agreement with Fairbanks covering Lamb's injuries, and that Fairbanks' claim that the *289
indemnity agreement was invalid based on R.C.
On March 26, 1986, the trial court filed an opinion in which it examined the Armco-Fairbanks indemnity agreement, the language of R.C.
Fairbanks appealed.
In its brief before this court, Fairbanks assigns a single assignment of error:
"The trial court erred in granting defendant/third-party plaintiff, Armco's motion for judgment on the pleadings."
The indemnity agreement between Armco and Fairbanks provides in pertinent part as follows:
"A. Indemnity — Contractor [Fairbanks] shall protect, indemnity and hold harmless Armco, any of its subsidiaries, and any of its or their employees, workmen, servants or agents (`Covered Parties') of and from any loss, cost, damage or expense arising from:
"(1) any and all claims which may be made against Armco, any of its subsidiaries, or any Covered Parties by reason of injury or death to person, or damage to property, suffered, or claimed to have been suffered, by any person, firm, corporation, or other entity, caused by, or allged to have been caused by, any act or commission, negligent or otherwise, of Contractor or any subcontractor retained by or through Contractor, or of any of their employees, workmen, servants, or agents;
"* * *
"(3) any and all claims which may be made against Armco, any of its subsidiaries, or any Covered Parties by reason of injury or death to person, or damage to property, however caused, or alleged to have been caused, and even though claimed to be due to the negligence of Armco, any of its subsidiaries, or any Covered Parties, suffered, or claimed to have been suffered by Contractor or any subcontractor retained by or through Contractor or by any of their employees, workmen, servants or agents; * * *."
With the pertinent language italicized, R.C.
"A covenant, promise, agreement, or understanding in, or inconnection with or collateral to, a contract or agreementrelative to the design, planning, construction, alteration, repair, or maintenance of a building, structure, highway, road, appurtenance, and appliance, including moving, demolition, and excavating connected therewith, pursuant to which contract oragreement the promisee, or its independent contractors, agents or employees has hired the promisor to perform work, purporting toindemnify the promisee, its independent contractors, agents, employees, or indemnitees against liability for damages arisingout of bodily injury to persons *290 or damage to property initiated or proximately caused by orresulting from the negligence of the promisee, its independentcontractors, agents, employees, or indemnitees is against publicpolicy and is void. Nothing in this section shall prohibit any person from purchasing insurance from an insurance company authorized to do business in the state of Ohio for his own protection or from purchasing a construction bond."
Because the court below agreed with Fairbanks that the cleaning work performed by Lamb on Armco's trailer was "maintenance," as that term is used in R.C.
For the reasons which follow we agree with the trial court that a semi-trailer is not an "appliance" as that term is used in R.C.
We begin our analysis of this problem by observing that R.C.
In examining R.C.
In reviewing the most recently reported decisions on R.C.
Having reached a preliminary conclusion about what "appliance" means as it is used in R.C.
Based upon these cases and the context in which "appliance" appears in R.C.
Because a semi-trailer is not an appliance as described in R.C.
Fairbank's assignment of error is overruled and the judgment of the trial court is affirmed.
The assignment of error properly before this court having been ruled upon as heretofore set forth, it is the order of this court that the judgment or final order herein appealed from be, and the same hereby is, affirmed.
Judgment affirmed.
JONES, P.J., HENDRICKSON and CASTLE, JJ., concur.
CASTLE, J., retired, of the Twelfth Appellate District, sitting by assignment.