501 N.E.2d 670 | Ohio Ct. App. | 1986
Defendant and third-party plaintiff, Gold Circle Stores, appeals from a judgment of the Franklin County Court of Common Pleas finding its third-party claim against Six Industries, Inc. to be barred by R.C.
"1. The lower court erred in sustaining the motion of * * * third-party defendant Six Industries, Inc. for summary judgment on the basis that the claim against it was barred by the ten-year statute of limitations imposed by Ohio Revised Code Section
"2. The lower court erred in failing *40
to find that application of Ohio Revised Code Section
Plaintiff brought this action against Gold Circle and others in 1982, seeking to recover damages for personal injury allegedly received in an explosion on Gold Circle's premises. Gold Circle filed a third-party complaint against Six Industries, Inc., seeking indemnification pursuant to a provision of a construction contract, under which Six Industries had contracted to construct structures on Gold Circle's premises, allegedly including the facility causing the explosion, which apparently actually was constructed by a subcontractor.
It is undisputed that the contract between Gold Circle and Six Industries for construction was completed in 1969, that plaintiff Richards was injured in 1981 and that he brought this action in 1982. Six Industries contends, and the trial court found, that Gold Circle's claim is barred by the provisions of R.C.
"No action to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained as a result of said injury, shall be brought against any person performing services for or furnishing the design, planning, supervision of construction, or construction of such improvement to real property, more than ten years after the performance or furnishing of such services and construction. This limitation does not apply to actions against any person in actual possession and control as owner, tenant, or otherwise of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought."
Six Industries and the trial court take the simplistic approach that, since R.C.
Gold Circle, on the other hand, contends that R.C.
The 1969 contract between Gold Circle and Six Industries contains a provision that Six Industries shall indemnify and hold harmless Gold Circle against all claims, damages, losses and expenses, including attorney fees, arising out of or resulting from the performance of the work attributable to bodily injury caused in whole or in part by any negligent act or omission of Six Industries or of its subcontractors. Gold Circle contends that this action is predicated upon breach of that contractual obligation by Six Industries with respect to plaintiff Richards' claim and, thus, the controlling statute of limitations is the fifteen-year limitation of R.C.
"Except as provided in section
As held in the second paragraph of the syllabus of TravelersIndemnity Co. *41
v. Trowbridge (1975),
"* * * Indemnity * * * arises from contract, express or implied, and is the right of a person, who has been compelled to pay what another should have paid, to require complete reimbursement."
Accordingly, whether common-law indemnity or an express contract of indemnity be involved, it arises from contract, not tort, even though the underlying action or claim giving rise to the right to indemnity is a tort action. Thus, the reference in R.C.
Gold Circle relies upon several cases holding that R.C.
In a prior appeal in this case involving a cross-claim against a subcontractor of Six Industries, this court found Gold Circle's claim for common-law indemnity to be barred by R.C.
Although Matia, supra, was not determined upon the basis of a claim for indemnity or application of R.C.
"The trial court determined that the Jaffes' cause of action against Friedman is a claim on a written contract governed by R.C. §
That issue, however, was not reviewed on appeal. Other than this, neither party suggests any case which has determined the precise issue before us, namely, whether statutes like R.C.
Since submission of this appeal, the Supreme Court has resolved the issue of whether application of R.C.
"R.C.
In the opinion at 99, it is explained that:
"* * * The language selected by the General Assembly is uniformly used to describe tortious conduct. For example, the statute's use of the terms `defective' and `unsafe' to describe the improvements at issue distinguish the actions *42 contemplated within the statute from warranty or other contractual claims. * * * [Emphasis sic.]
"* * * Torts arise from the breach of certain duties of conduct that are imposed by law for the protection of all persons within range of the harm or injury proximately resulting from such breach. Contractual duties, on the other hand, arise from the specific agreement of the parties to the contract."
Kocisko, however, like the other cases cited supra, did not involve a claim of indemnity and does not directly resolve the issue before us.
R.C.
R.C.
Like the Supreme Court, we find nothing in R.C.
In short, an express written contract of indemnity may be much broader in scope than common-law indemnity. As noted inTrowbridge, supra, common-law indemnity exists most commonly *43
where a person is chargeable with another's wrongful act and pays damages to the injured party as a result thereof. Thus, common-law indemnity might well exist under the circumstances of this case and would be barred. However, the parties entered into an express contract of indemnity, which requires Six Industries to indemnify and hold harmless Gold Circle, regardless of whether a common-law right of indemnity might exist. Since Gold Circle is attempting to enforce an express contractual right of indemnity arising from a written contract, we see no reason to treat a breach of that contract any differently from any other breach of the contract merely because the contractual right conferred, presumably for a valuable consideration, is a right of indemnity. Nor do we find anything in R.C.
To hold otherwise would enable Six Industries to avoid the contractual obligation of indemnity, which it undertook when it executed the contract in question, by virtue of a statute enacted subsequent to the execution of the contract. Since, ordinarily, statutes of limitations may be waived, it is at least arguable that an express written contract of indemnity could provide that it would be applicable notwithstanding R.C.
Although in this case Gold Circle might have had a common-law remedy of indemnity under the circumstances, this is not a necessary prerequisite for creation of an express written contract of indemnity. Although not yet established, it appears that Gold Circle might not have had a common-law remedy of indemnity against Six Industries, but, instead, that any common-law remedy might have been assertable only against the subcontractor, which was the subject of the prior appeal. Since an express written contract of indemnity may require indemnification with respect to a situation where no common-law remedy would exist, the language of R.C.
Turning specifically to the assignments of error, we find the first assignment of error to be well-taken in that the trial court erroneously applied R.C.
However, the second assignment of error is not well-taken. Although there may be some merit to Gold Circle's argument that, if the 1971 amendment to R.C.
For the foregoing reasons, the first assignment of error is sustained, and the *44 second assignment of error is overruled. The judgment of the Franklin County Court of Common Pleas is reversed, and this cause is remanded to that court for further proceedings in accordance with law consistent with this opinion.
Judgment reversed and cause remanded.
REILLY, P.J., and STERN, J., concur.
STERN, J., retired, of the Supreme Court of Ohio, was assigned to active duty under authority of Section