NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant : : v. : No EDA 2011 : : : : :

Transcription

1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P JOANNE MOLETTIERE, : : BRITTANY SQUARE CVS, INC., CAMPANELLI LANDSCAPING INC., CENOVA, INC., GEORGE ALLEN & SONS, INC. IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant : : v. : No EDA 2011 : : : : : Appeal from the Order Entered October 28, 2011, in the Court of Common Pleas of Montgomery County Civil Division at No BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., AND ALLEN,* J. MEMORANDUM BY FORD ELLIOTT, P.J.E.: Filed: April 1, 2013 Joanne Molettiere ( Molettiere ) appeals from the order of October 28, 2011, denying post-trial relief, molding the jury s verdict to zero dollars and ordering the judgment satisfied. Molettiere brought this action after slipping and falling on an accumulation of ice and snow outside a CVS pharmacy. The jury awarded damages of $250,000, and apportioned 85% of the negligence to CVS and 15% to Cenova, the ice and snow removal subcontractor. CVS then sought indemnification from Cenova based on an indemnity clause in the contract, which the trial court granted. Since Molettiere had already entered into a settlement and release with Cenova, * Judge Allen did not participate in the consideration or decision of this case.

2 the trial court s ruling resulted in a net zero dollar recovery for Molettiere. After careful review, we reverse. The trial court has summarized the history of this matter as follows: This was a premises liability action. On December 15, 2005, Joanne Molettiere ( Plaintiff ) slipped and fell on ice and/or snow outside a CVS Pharmacy in Chalfont, Pennsylvania. Prior to the incident, CVS had entered into a snow removal contract with Campanelli Landscaping, Inc. Camp[a]nelli then subcontracted for snow removal with Cenova, Inc., who thereafter subcontracted with George Allen & Sons, Inc. Prior to trial, Plaintiff settled and entered into joint-tortfeasor releases with Cenova and George Allen & Sons. Plaintiff then proceeded to trial against CVS and Campanelli (collectively, Appellees ). Cenova and George Allen & Sons remained in the case because Appellees had cross claims against them. On April 6, 2011, at the conclusion of a multiple day jury trial, a verdict was returned in favor of Plaintiff and against CVS and Cenova, only. The jury found CVS s causal negligence to be eightyfive percent (85%) and Cenova s to be fifteen (15%) percent. The jury determined Plaintiff s damages to be two hundred fifty thousand dollars ($250,000.00). Although CVS was found partially liable, the snow removal subcontract between Campanelli and Cenova provided that Cenova would indemnify Appellees for all liability to third parties, including attorney s fees and costs, arising from acts or omissions from [sic] Cenova. Accordingly, after a June 9, 2011 post-trial hearing on Appellees cross claims, the Court entered judgment in favor of Appellees and against Cenova, directing Cenova to indemnify Appellees as to all liability to Plaintiff

3 Cenova and Plaintiff filed Motions for Post-Trial Relief on June 20, 2011 and June 27, 2011, respectively. After continuances, this Court heard oral argument regarding the Motions on October 25, On October 28, 2011, this Court denied both Motions. Also on this date, this Court issued Orders granting Appellees Motion to Mold the Jury Verdict [Footnote 1] and Appellees Motion for Reimbursement of Fees and Costs. [Footnote 2] On November 22, 2011, Cenova filed a Notice of Appeal of the denial of its Motion for Post-Trial Relief and a separate Notice of Appeal of the granting of Appellees Motion for Reimbursement of Fees and Costs.[ 1 ] On November 23, 2011, Plaintiff filed a (joint) Notice of Appeal of the denial of its Motion for Post-Trial Relief and the granting of Appellees Motion to Mold the Jury Verdict. [Footnote 3] On November 21, 2011, pursuant to Pa.R.A.P. 1925(b), this Court directed Plaintiff to file a Concise Statement of Errors Complained of on Appeal within twenty-one (21) days. [Footnote 4] On December 12, 2011, this Court directed Cenova to file a Concise Statement as well. Plaintiff and Cenova filed their timely Concise Statements on December 12, 2011 and January 3, 2012, respectively. [Footnote 1] The Court molded the jury s verdict against [CVS] from (85% of) $250,000 to $0. [Footnote 2] The Court found that, in total, Appellees had expended $89, in counsel fees and expenses. [Footnote 3] On January 31, 2012, the Superior Court issued an Order consolidating the three appeals. 1 On July 24, 2012, we dismissed Cenova s appeals at Nos and 3081 EDA 2011 for failure to file a brief

4 [Footnote 4] The Court received a bench copy of Plaintiff s Notice of Appeal in advance of the copy which was docketed. Trial court opinion, 2/23/12 at 1-3. Molettiere has raised the following question for this court s review: Molettiere s brief at 3. Whether the trial court erred in interpreting the indemnification provision at issue and in subsequently allowing the indemnitee to avoid liability arising out of the indemnitee s own negligence where the indemnification provision: (1) by its express terms only provided the indemnitee with indemnification for liability arising out of the acts or omissions of the indemnitor or the indemnitor s subcontractors; (2) only used words of general import; (3) provided for no such result under the facts of this case as the indemnitee was actively negligent, and principally responsible for the plaintiff s injuries, and the indemnitor was only passively negligent; and (4) is, at best, ambiguous as to whether the indemnitor agreed to assume liability for the indemnitee s own negligence? This case involves interpretation of a contract. CVS 2 seeks indemnification from Cenova based upon a clause in the subcontract, which was drafted by Campanelli. Initially, we note that the interpretation of any contract is a question of law and this Court's scope of review is plenary. Moreover, we need not defer to the conclusions of the trial court and are free to draw our own inferences. In interpreting a contract, the ultimate 2 Although both CVS and Campanelli Landscaping are appellees, for ease of discussion we will usually refer to CVS only

5 goal is to ascertain and give effect to the intent of the parties as reasonably manifested by the language of their written agreement. When construing agreements involving clear and unambiguous terms, this Court need only examine the writing itself to give effect to the parties' understanding. This Court must construe the contract only as written and may not modify the plain meaning under the guise of interpretation. Nevyas v. Morgan, 921 A.2d 8, 15 (Pa.Super.2007) (quoting Currid v. Meeting House Restaurant, Inc., 869 A.2d 516, 519 (Pa.Super.2005)). In addition, a preferred contract interpretation ascribes under all circumstances the most reasonable, probable, and natural conduct to the parties. Gaffer Insurance Co., Ltd. v. Discover Reinsurance Co., 936 A.2d 1109, 1113 (Pa.Super.2007) (quoting Midomo Co. v. Presbyterian Housing Development Co., 739 A.2d 180, 191 (Pa.Super.1999)). Further, any contractual ambiguities are construed against the drafter of the provision. Bucks Orthopaedic Surgery Associates, P.C. v. Ruth, 925 A.2d 868, 871 (Pa.Super.2007). Lane v. Commonwealth, 954 A.2d 615, (Pa.Super. 2008). Section 10 of the snow removal subcontract between Campanelli and Cenova provides, in relevant part, as follows: Indemnification: [CENOVA] agrees to indemnify, hold harmless and defend CVS & CAMPANELLI, and any employee or agent thereof (each of the foregoing being hereinafter referred to individually as the Indemnified Party ) against all liability (including reasonable attorneys fees and costs) to third parties (other than liability solely the fault of the Indemnified Party) arising from the acts or omissions of [CENOVA], its agents or any snowplow - 5 -

6 and/or ice removal contractors engaged to remove snow and ice from properties owned or leased by CVS in the performance of [CENOVA] s, its agents or such contractors obligations hereunder. Before proceeding to an examination of the indemnity clause at issue in this particular case, it is necessary to briefly review the case law in this specific area. In Pennsylvania, the Perry-Ruzzi rule is implicated when a party is seeking indemnification for its own negligence. Under the Perry-Ruzzi rule, a contract will not be construed to provide indemnification against a party s own negligence unless that intent is expressly and unequivocally stated and the circumstances indicate that the contract is intended to so apply. In the seminal case of Perry v. Payne, 217 Pa. 252, 66 A. 553 (1907), two employees of a subcontractor of Payne & Co. were painting the inside of an elevator shaft. Id. at 255, 66 A. at 554. The building was owned by Edward Perry. While one of the painters was standing in the bottom of the elevator shaft, the elevator operator, an employee of Perry s, lowered the elevator and struck the man, causing his death. Id. The decedent s widow recovered a judgment against Perry for his employee s negligence in operating the elevator. Id. Perry sought indemnification against Payne & Co. for the damages recovered against him by the decedent s widow. The bond of indemnity provided that the contractors shall protect and keep harmless the said Edward Perry *** from damages arising from - 6 -

7 accidents to persons employed in the construction of, or passing near, the said work. Id. at 257, 66 A. at 554. Despite such broad language, the Pennsylvania Supreme Court rejected Perry s contention that the bond indemnified him against all damages arising from injuries to any person employed about the work, whether the injuries were caused by the negligence of the contractors or their employees, or by the negligence of himself or his employees. Id. In so doing, the court emphasized the extraordinary nature of contracts indemnifying the indemnitee against his own negligence: It is contrary to experience and against reason that the contractors should agree to indemnify Perry against the negligence of himself or his employes. It would make them insurers, and impose a liability upon the contractors, the extent of which would be uncertain and indefinite, and entirely in the hands of Perry. The results of such a liability might become most disastrous. Id. at 259, 66 A. at 555. In holding that the parties did not expressly stipulate against injury occasioned by the indemnitee s own negligence, the court in Perry distinguished the language used in Woodbury v. Post, 158 Mass. 140, 33 N.E. 86 (1893), where the terms of the contract specifically provided indemnity against the indemnitee s own negligence: If any injury shall be occasioned to any person or property while you are using such engines or derricks, or as a result of such use, you are to indemnify us against any damage or expense by reason of the same, notwithstanding the condition of - 7 -

8 the engine, derrick, or appliances, or the negligence of our employes upon the derrick or engine, may have caused or contributed to the injury. Id. at 261, 66 A. at 556 (emphasis added). The Perry court made clear that, as in Woodbury, the contract must expressly stipulate against the indemnitee s own negligence, and words of general import are insufficient: We think it clear, on reason and authority, that a contract of indemnity against personal injuries, should not be construed to indemnify against the negligence of the indemnitee, unless it is so expressed in unequivocal terms. The liability on such indemnity is so hazardous, and the character of the indemnity so unusual and extraordinary, that there can be no presumption that the indemnitor intended to assume the responsibility unless the contract puts it beyond doubt by express stipulation. No infernce [sic] from words of general import can establish it. Id. at 262, 66 A. at 557. Eighty-four years later, in Ruzzi v. Butler Petroleum Co., 527 Pa. 1, 588 A.2d 1 (1991), our supreme court reaffirmed its decision in Perry that contractual provisions purporting to indemnify the indemnitee for its own negligence must be stated expressly and unequivocally. In Ruzzi, a fiberglass gasoline tank exploded, causing injury to Mr. Ruzzi. Id. at 5-6, 588 A.2d at 3. Butler Petroleum, which provided the gas tank, was found 84% liable; George Shockey, who was installing the tank, was found 16% liable. Id. at 6, 588 A.2d at 3. Edmund and Janice Zinsser, who owned the service station where the tank was being installed, were not found liable

9 However, the Zinssers agreement with Butler Petroleum contained an indemnity clause, which provided: [The Zinssers]... exonerate, discharge, and agree to protect and save harmless and indemnify [Butler Petroleum]... from any and all liability for claims for loss, damage, injury or other casualty to persons or property... caused or occasioned by any leakage, fire, explosion or other casualty occurring through any imperfection in, injury or damage to, or by reason of the installation, use, operation and/or repair of the said equipment or of the premises. Id. at 5, 588 A.2d at 3 (brackets and ellipses in original). The trial court refused to enforce the indemnity clause, relying on Perry. Id. at 7, 588 A.2d at 3. This court affirmed on different grounds, finding that Butler Petroleum was not entitled to indemnity because it was found to be 84% negligent, citing DiPietro v. City of Philadelphia, 496 A.2d 407 (Pa.Super. 1985) (en banc). 3 The Pennsylvania Supreme Court affirmed, finding that the indemnification clause in the agreement between the Zinssers and Butler Petroleum used only words of general import, i.e., any and all liability : The law has been well settled in this Commonwealth for 87 years that if parties intend to include within the scope of their indemnity agreement a provision that covers losses due to the indemnitee's own negligence, they must do so in clear and unequivocal 3 In DiPietro, this court concluded that indemnity is disallowed where the indemnitee is actively negligent. Id. at 7 n.2, 588 A.2d at 4 n.2. The concept of active versus passive negligence in the context of indemnity clauses is discussed further infra. In Ruzzi, our supreme court stated that because the rule announced in Perry was dispositive of the issue raised, it was unnecessary to discuss active versus passive negligence. Id

10 language. No inference from words of general import can establish such indemnification. Id. at 7, 588 A.2d at 4 (citations omitted). Because Perry was the law in this jurisdiction when Butler Petroleum and the Zinssers entered into their indemnification agreement we must assume that they knew that the law would not recognize as effective their agreement concerning the negligent acts of the indemnitee (Butler Petroleum) unless an express stipulation concerning negligence was included in the document. Id. at 8-9, 588 A.2d at 4 (emphasis in original). We find the case of Greer v. City of Philadelphia, 568 Pa. 244, 795 A.2d 376 (2002), to be instructive. In Greer, the Pennsylvania Department of Transportation ( PennDOT ) entered into a contract with J.H. Green Electric Company ( Green ) to remove overhead signs from Interstate 95 in Philadelphia. Id. at 245, 795 A.2d at 377. Green entered into a subcontract with Custom Tower Structures ( CTS ), whereby CTS assumed responsibility for traffic management. Id. Jason Greer was stopped on I-95 during sign removal when he was violently rear-ended by Thomas Devlin, causing serious and permanent injuries, including paraplegia. Id. at 246, 795 A.2d at 377. After a jury trial, Greer was found to be 12% comparatively negligent, and PennDOT, Green, CTS, and Devlin each 22% negligent. Id. PennDOT and Green sought indemnity from CTS under the terms of the CTS subcontract, which included an indemnity clause in which CTS agreed to indemnify and hold harmless PennDOT and Green:

11 from and against claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from the performance of the Subcontractor's Work under this Subcontract... but only to the extent caused in whole or in part by negligent acts or omissions of the Subcontractor, the Subcontractor's Sub Subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Id. at 246, 795 A.2d at 377 (emphasis in original). Green argued that the above provision gave it and PennDOT complete indemnity for their own negligence, as long as CTS was also partially negligent. Id. at 249, 795 A.2d at 379. PennDOT argued that the provision indemnified it and Green for their own negligence only up to an amount equal to CTS s liability for its negligence. Id. The Greer court rejected both of these approaches. The court found that by the plain language of the contract, Green and PennDOT were only indemnified to the extent that CTS was negligent: Contrary to their assertions, the language of the indemnity provision in no way demonstrates an unambiguous intention by CTS to provide indemnification for the negligence of the indemnitees, as required by the Perry Ruzzi rule. By agreeing to language stating that PennDOT and Green were indemnified for damages only to the extent that the damages were caused by the negligence of CTS and its sub-subcontractors, employees and anyone for whom it may be liable, the parties communicated their intent to limit any indemnification to that portion of damages attributed to the negligence of CTS and those under its supervision. The chosen language simply does not

12 evince an intent to provide indemnification for damages due to the negligence of other unspecified parties, including an indemnitee. Moreover, we read the second part of the provision, which states that the indemnity clause will apply regardless of whether or not such claim... is caused in part by a party indemnified hereunder, merely to clarify that any contributory negligence by PennDOT and Green will not bar their indemnification for damages due to CTS's negligence. Id. at , 795 A.2d at (emphasis in original). The Greer court determined that the contract did not put it beyond doubt by express stipulation that CTS intended to indemnify PennDOT and Green for their own negligence: Unless the language of the contract is clear and unambiguous, however, such that the contract puts it beyond doubt that the parties intended the interpretation that PennDOT advocates, we must opt for the interpretation that does not shoulder CTS with the fiscal responsibility for Green s and PennDOT s negligence. Id. at 251, 795 A.2d at 380, quoting Perry, 217 Pa. at 262, 66 A. at 557. Instantly, Cenova agreed to indemnify CVS and Campanelli against all liability... to third parties (other than liability solely the fault of the Indemnified Party) arising from the acts or omissions of [Cenova].... Obviously, use of the general phrase against all liability is, in and of itself, insufficient under the Perry-Ruzzi rule to provide CVS with indemnity for its own negligence. CVS focuses on the parenthetical phrase, other than liability solely the fault of the Indemnified Party, arguing that this provision clearly and unambiguously provides it with indemnification for its own

13 negligence, unless it is 100% negligent. Thus, under CVS s approach, Cenova would have to indemnify CVS for its own negligence even where CVS is found to be 99% negligent. Cenova, on the other hand, focuses on the phrase, arising from the acts or omissions of [Cenova], arguing that it is only obligated to indemnify CVS for liability attributable to the acts or omissions of Cenova or Cenova s employees and subcontractors. Cenova contends that the parenthetical excluding liability solely the fault of [CVS] is simply to clarify that liability to third parties does not include liability solely the fault of CVS; in other words, any comparative fault of CVS would not bar it from indemnification if it was made to pay damages which were attributable to acts or omissions of Cenova. At the very least, we find that the indemnification provision at issue here is ambiguous and, as such, must be construed against the drafter, CVS/Campanelli. Lane, 954 A.2d at 619; Ratti v. Wheeling Pittsburgh Steel Corp., 758 A.2d 695, 703 (Pa.Super. 2000), appeal denied, 567 Pa. 715, 785 A.2d 90 (2001) ( our rules require us to strictly construe such agreements against its drafter ). Certainly, where both CVS s and Molettiere s proposed interpretations are not wholly unreasonable, the contract does not express a clear, definite and unequivocal intent to cover losses due to the indemnitee s own negligence. 4 4 In Ratti, the contract between P.J. Dick Contracting and Wheeling-Pitt contained an indemnification provision whereby P.J. Dick agreed to assume responsibility for, inter alia, any and all claims relating to the work provided

14 CVS relies primarily on Hershey Foods Corp. v. General Electric Service Co., 619 A.2d 285 (Pa.Super. 1992), appeal denied, 536 Pa. 643, 639 A.2d 29 (1993). In Hershey Foods, an employee of General Electric Service Company ( GESCO ), was fatally struck by a pallet freight elevator while installing electrical wiring in one of Hershey s buildings. Id. at 287. The decedent s estate filed suit against Hershey, and the jury returned a verdict against Hershey in the amount of $561,018.95, apportioning 90% of the negligence to Hershey and 10% to the decedent electrician. Id. Hershey subsequently brought suit against GESCO, seeking indemnification for in the contract, even though such damages, injury, loss or expense are attributable to the joint, concurrent or contributory negligence of [Wheeling- Pitt], its agents, servants, or employees, except where such penalties, losses, liabilities, claims, or demands result from the sole negligence of [Wheeling-Pitt]. Ratti, 758 A.2d at 701. The parties did not dispute that such language clearly and unequivocally expressed their intent to cover losses due to the indemnitee, Wheeling-Pitt s, own negligence. Id. at 703. The issue presented in Ratti was whether the parties intended to provide indemnity for gross negligence, beyond mere ordinary negligence. Id. This court refused to read the term gross negligence into the indemnity provision and held that the indemnity language drafted by Wheeling-Pitt did not express a clear, unequivocal and definite intent to cover damages where Wheeling-Pitt s gross negligence caused the accident. However, Ratti is illustrative of the type of clear and definite language required for such indemnity clauses to be enforceable under the Perry-Ruzzi rule

15 under the terms of their contract. The contract included an indemnification provision, which provided, in relevant part: [GESCO] shall indemnify and hold harmless [Hershey] and their agents and employees from and against all claims, damages, losses and expenses including attorneys' fees arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss or expense... (b) is caused in whole or in part by any negligent act or omission of [GESCO],... anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder. Id. at In Hershey Foods, the jury found both Hershey and the decedent, GESCO s employee, to have been negligent in causing the accident. Id. at 288. This court found that under the plain language of the contract, the parties unambiguously provided for indemnification even where the indemnitee was also negligent. Id. 5 We find the language in Hershey Foods to be distinguishable. There, the contract explicitly required GESCO to indemnify Hershey against any loss 5 Ultimately, this court in Hershey Foods determined that Hershey was not entitled to indemnification from GESCO because the decedent was not in the process of performing electrical work when the accident occurred. The Work was defined in the contract as the performance of electrical work throughout the plant. Id. at 289. The decedent s work did not require that he use the elevator and at the time of the accident, he was on lunch break, sitting on the pallet freight elevator s conveyor belt, eating a candy bar. Id. at 287. We concluded that since the contract did not clearly include the decedent s conduct within the definition of performance of the Work, and because the contract language was ambiguous with respect to the issue, it must be construed against Hershey as the drafter of the contract s terms. Id. at

16 caused in whole or in part by any negligent act or omission of... anyone directly or indirectly employed by [GESCO]..., regardless of whether or not it is caused in part by a party indemnified hereunder. Id. at 288 (emphasis in Hershey Foods). This language does not appear in the indemnification provision at issue in the instant case. Rather, here, Cenova agreed to indemnify CVS against all liability... to third parties (other than liability solely the fault of [CVS]) arising from the acts or omissions of [CENOVA], its agents and subcontractors, etc. We cannot say that this contract language clearly and unequivocally evinced an intent to indemnify against CVS s own negligence, so long as it was less than 100% negligent. The provision only refers to Cenova s acts or omissions, not those of CVS. Nor are we convinced by CVS s arguments regarding Cenova s duty to defend and to provide insurance. Those provisions are separate from the duty to indemnify at issue here, and the cases cited by CVS are lower federal court decisions which are not binding on this court. (CVS s brief at 19.) Finally, we return to the concept of active versus passive negligence 6 alluded to earlier. In Deskiewicz v. Zenith Radio Corp., 561 A.2d 33 6 In Potter Title and Trust Co. v. Young, 367 Pa. 239, 80 A.2d 76 (1951), our Supreme Court stated: Generally speaking, the term passive negligence denotes negligence which permits defects, obstacles or pitfalls to exist upon the premises, in other words, negligence which causes dangers arising from the physical condition of the land

17 (Pa.Super. 1989), International Pipings Systems ( IPS ), was contracted by Zenith to disassemble an oxidizer and move it to a plant located in Illinois. A subcontractor of IPS, Henry Deskiewicz, was injured in the disassembly process. Specifically, it was essential that the oxidizer be de-energized and all power being fed into the machine be cut off, before it could be taken apart. Id. at 37. Deskiewicz inserted the tip of his screwdriver into a 30- amp switch to confirm that the machine had indeed been de-energized. Id. Sparks began to fly, at which point Deskiewicz jumped from an 8-foot platform on top of the oxidizer, sustaining serious bodily injuries. Id. at 34, 37. Deskiewicz settled with IPS for $40,000, and with Zenith for $123,750. Id. at 34. Zenith sought contractual indemnity from IPS, which was denied. This court reversed, finding that, as in Hershey Foods, supra, the itself. Active negligence, on the other hand, is negligence occurring in connection with activities conducted on the premises, as, for example, negligence in the operation of machinery or of moving vehicles whereby a person lawfully upon the premises is injured. Id. at , 80 A.2d at See also Kopp v. R. S. Noonan, Inc., 385 Pa. 460, 123 A.2d 429 (1956); Komlo v. Balazick, 169 Pa.Super. 296, 82 A.2d 706 (1951). Urban Redevelopment Authority of Pittsburgh v. Noralco Corp., 422 A.2d 563, (Pa.Super. 1980)

18 contractual language was explicit where it provided that IPS would indemnify Zenith for any claim caused in whole or in part by any negligent act or omission of the contractor. Id. at 35. Id. Of particular importance, in our opinion, is the language in whole or in part by any negligent act. This is explicit language which envisions the possibility that IPS will be obligated to indemnify Zenith even though someone other than IPS has contributed, through a negligent act or omission, to the liability imposed upon Zenith. Furthermore, to the extent the factor which triggers the indemnification obligation is the assumption of, or imposition upon, Zenith of a liability for personal injury, certainly a negligent act of Zenith must be considered one of the more likely and logical prefaces to imposition of such liability upon Zenith, and as such, arguably within contemplation of the subject indemnification clause. However, following Urban Redevelopment Authority v. Noralco Corp., 422 A.2d 563 (Pa.Super. 1980), the Deskiewicz court went on to examine the surrounding circumstances in determining the scope of the indemnity clause, including concepts of active and passive negligence of the indemnitee. Id. Deskiewicz noted that earlier cases, including Perry v. Payne, holding that generally worded clauses will not be construed to cover liability from the indemnitee s own negligence, involved situations where the indemnitee was solely or principally responsible for the injury. Id. at 36. Thus, allowing indemnification in those cases would have placed the indemnitor in, essentially, the position of an insurer. Id

19 The concept of active and passive negligence is intertwined with the concern of placing the indemnitor in the position of an insurer. As Deskiewicz observed, discussing Noralco: Noralco essentially establishes that although parties would not generally be thought of providing indemnification where the injury is caused by the active negligence of the indemnitee, the same cannot be said when the indemnitee is partially responsible for the injury by virtue of passive negligence. Id. at 36. The rationale in Noralco, in this regard, is in keeping with the general rationale of Perry and its progeny. The true essence of those holdings is a simple recognition that in executing such a provision the indemnitor is not agreeing to insure the indemnitee against loss, but, rather is acknowledging that its own actions may result in liability being imposed upon the indemnitee, and that it will, in such cases, reimburse the indemnitee for that liability. However, this rationale is less convincing, if convincing at all, where the injury is the result of the indemnitor's active negligence, and the indemnitee is, at most, passively negligent. Turning to the facts in Deskiewicz, that court found that Zenith was not actively negligent. The reason why the generator remained energized after the switch had been placed in the off position was unknown. Id. at 37. By contrast, the negligence of IPS and the plaintiff was of an active type, including the act of sticking a screwdriver into an electrical switch for the purpose of testing it. Id. As such, the Deskiewicz court concluded that

20 IPS was not put in the role of insurer. Id. at 38. See also Noralco, 422 A.2d at 567 (evidence at trial indicated that the indemnitee was merely passively negligent where its negligence, at most, consisted of a failure to warn). Instantly, there was evidence that the dangerous condition was created when a CVS employee shoveled snow from the sidewalk onto the parking lot. Cenova s sub-subcontractor, George Allen & Sons, was responsible for clearing the parking lot, but CVS remained responsible for maintaining the sidewalk. There was testimony that the parking lot had been cleared of ice and snow and that the dangerous condition that caused the plaintiff s fall was caused by a CVS employee shoveling snow from the sidewalk onto the parking lot. (Appellant s brief at 6.) The plaintiff fell on an accumulation of ice and snow in the parking lot area, immediately adjacent to the sidewalk. (Id. at 4.) Furthermore, as stated above, the jury found in favor of both Campanelli and George Allen & Sons. The jury apportioned 85% negligence to CVS and only 15% to Cenova. Since George Allen & Sons was the party actually responsible for clearing the parking lot of ice and snow, a fair inference is that the jury accepted CVS s argument that Cenova was negligent for failing to follow-up on the work performed by its sub-subcontractor, George Allen, to determine if additional snow and ice removal services were required. (Id. at 5-6.) Clearly, the jury determined

21 that CVS bore primary responsibility for the plaintiff s injuries. Given the evidence adduced at trial, it may be inferred that Cenova was passively negligent in failing to adequately supervise, but that CVS was actively negligent in shoveling snow from its sidewalk onto the parking lot in front of the store, after the lot had already been properly cleared of ice and snow. CVS complains that the jury was not asked to make any specific factual findings on the verdict sheet, and it is impossible to determine what their conclusions were in rendering their verdict. (CVS s brief at ) The jury s verdict was limited to apportioning liability and assessing damages. (Id.) However, in Noralco, the court noted that the jury s general verdict did not reveal whether or not they found the indemnitee to be actively negligent. Noralco, 422 A.2d at 567. The court considered the evidence introduced in the case to make that determination. Id. See also Deskiewicz, supra (stating that consistent with Noralco, all the circumstances of the accident itself must be considered). Since it is clear that CVS was actively negligent and primarily responsible for the accident, enforcing the indemnification clause at issue here would be tantamount to placing Cenova in the position of an insurer. For the foregoing reasons, we find that the indemnification provision is ambiguous at best, and, as such, must be construed against CVS; and, furthermore, that CVS was actively negligent, whereas Cenova, the indemnitor, was, at most, passively negligent. Therefore, the trial court

22 erred in finding that Cenova was responsible for indemnifying CVS against its own negligence. We are compelled to reverse the order appealed from and remand for the trial court to reinstate the original verdict. 7 Reversed and remanded. Jurisdiction relinquished. 7 CVS/Campanelli argue that the issue of whether the trial court properly granted their motion to mold the verdict is waived for failure to include it in Molettiere s statement of the questions involved. (CVS s brief at 9-10.) However, Pa.R.A.P., Rule 2116(a), 42 Pa.C.S.A., states, in relevant part, that The statement shall be no more than two pages and will be deemed to include every subsidiary question fairly comprised therein. No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby. Obviously, if the indemnification provision is ineffective, then it was error to mold the jury s verdict from $250,000 to $0. The trial court s order granting CVS s motion to mold the verdict was dependent upon its finding that the indemnification clause at issue covered damages caused by CVS s own negligence. (Molettiere s reply brief at 14.) Indeed, the trial court acknowledges that, The Court s molding of the jury s verdict against CVS to zero dollars logically flowed from its finding that the indemnification and defense clause was valid. (Trial court opinion, 2/23/12 at 6.) Whether it was proper to mold the verdict is subsumed within the indemnification issue. CVS s waiver argument fails