Kingston v. Markward & Karafilis, Inc.

350 N.W.2d 842 (1984)

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Nature of the Case

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Facts

Kingston (P)was employed by Chrysler Corporation (D). P was assisting another employee in replacing metal plate covers on top of an oil reservoir. The plate cover on which P was standing slipped and he fell into the reservoir and died. The reservoir and metal plate covers had been constructed in 1969 and 1970 when the plant was renovated. The metal plates were constructed by Kaufmann (D) pursuant to an agreement with Chrysler (D). Included in the General Conditions was a clause indemnifying Chrysler (D) against property damage and personal injury related to Kaufmann's (D) work. On March 19, 1969, Chrysler (D) and Markward (D) entered into an agreement for the construction of an addition to the same building. The metal plates constructed by Kaufmann (D) were considered a substructure of the building. The addition constructed by Markward (D) was labeled a superstructure that was added to the building. Chrysler (D) sent Kaufmann (D) a letter, informing Kaufmann (D) that its contract was 'assigned' to Markward (D). Chrysler (D) said it will continue to make direct payments to Kaufmann (D) under the terms of our present contract. Kaufmann (D) acknowledged the letter and said it had no objection to this assignment as long as its retention money is not held until the completion of the Markward (D) contract. Markward (D) took charge and sent a letter to the architect associated with the renovation, John G. Hoad & Associates, advising Hoad that gratings (covers) on the oil reservoir tanks were not anchored and therefore posed a danger to property and people. Markward (D) asked Hoad to inspect the gratings. Markward (D) was not advised of any subsequent changes to be made, nor was Kaufmann (D) ever informed of the slippage problem. The construction of 'stops' on the plates would have been considered extra and additional work since they were not included in the plans and specifications issued to Kaufmann (D). P brought an action against Markward (D), which P claimed was the general contractor; Kaufmann (D) was identified as a subcontractor; and Hoad Associates, the architect. Third-party complaints for common-law indemnity were filed against Chrysler by Markward (D) and Kaufmann (D) filed third party complaints against Chrysler (D). Markward (D) cross-claimed against Kaufmann (D) on the basis of the assignment of the contract by Chrysler (D). Chrysler (D) claimed that it had a right to indemnity under its contract with Kaufmann (D). The jury was instructed that Markward (D) is entitled to a verdict in its favor on the cross-claim for indemnity under the language of the purchase order under any one of the following circumstances: Kaufmann (D) was negligent and its negligence was the full proximate cause of P's death, or: that Markward (D) and Kaufmann (D)were negligent and this negligence was a proximate cause of P's death. P got a $3,000,000 verdict against Markward (D) and Kaufmann (D). The jury awarded total indemnity in favor of Markward (D), the general contractor. Markward (D) and Kaufmann (D) were found to have no cause of action against Chrysler (D). Kaufmann (D) filed a motion for a new trial or remittitur and Kaufmann (D) and P entered into a covenant not to enforce the judgment. P received a payment of $1,000,000 for the covenant. Kaufmann's (D) motion for judgment notwithstanding the verdict on the indemnity claim was denied.