Great Plains Roofing & Sheet Metal, Inc. v. K Bldg. Specialties, Inc.

62 Kan.App.2d 204

510 P.3d 1172

GREAT PLAINS ROOFING AND SHEET METAL, INC., Appellant,

v.K BUILDING SPECIALTIES, INC., et al., Appellees.

No. 124,170

Court of Appeals of Kansas.

Opinion filed April 29, 2022

Jenifer W. Svancara, Jeffrey C. Baker, and Christopher R. Staley, of Sanders Warren Russell & Scheer LLP, of Overland Park, for appellant.

David J. Welder and Michael G. Norris, of Norris Keplinger Hicks & Welder, LLC, of Leawood, for appellees.

Before Isherwood, P.J., Green and Bruns, JJ.

Green, J.:

An on-the-job accident injured Philip Andrew Trokey, and he sued Great Plains Roofing and Sheet Metal, Inc. (Great Plains) in Jackson County, Missouri. Great Plains settled with Trokey. Then, Great Plains filed an indemnification suit against K Building Specialties, Inc. and Installtec, Inc. (K Building) in Johnson County, Kansas. K Building and Great Plains both moved for summary judgment. The Johnson County District Court granted summary judgment for K Building. Great Plains appeals. Because Kansas' one-action rule bars Great Plains from postsettlement contribution, we affirm.

FACTS

In July 2014, Great Plains and K Building were subcontractors working on a construction project at the John Deere Regional Facility in Olathe, Kansas. Great Plains and K Building had separate contracts with The Weitz Company (Weitz), the general contractor. K Building's employee, Spencer Plumb, operated an aerial lift despite not having an aerial lift certification and not fully inspecting the lift before operating it. While Plumb operated the lift, it tipped over. The K Building employee in the lift bucket, Philip Andrew Trokey, suffered injuries including a fractured femur, hip, ribs, multiple fractures to vertebrae, and a traumatic brain injury. Trokey sued the aerial lift's owner, Great Plains, in Jackson County, Missouri. His claims against Great Plains were: (1) supplying a dangerous chattel or product, (2) failure to warn, and (3) general negligence.

K Building's contract with Weitz instructed K Building to use the aerial lift owned by Great Plains. K Building agreed that it would be responsible for the safe operation of the aerial lift as follows: "Man lifts and scaffold will be provided by others for use by [K Building]. [K Building] is responsible for the safe operation of equipment and also responsible for repair costs for damages caused while operating the equipment." Under the contract, K Building also "agrees and acknowledges that it has assumed full responsibility and liability for safety precautions in connection with the construction means, methods, techniques, sequences, supervision and procedures pertaining to [K Building's] Work." K Building also agreed to the following: "No [K Building] employee shall operate any equipment unless specifically authorized and trained to do so." And K Building "shall take reasonable precautions (including, without limitation, providing any and all necessary training) for the safety of and should provide reasonable protection to prevent damage, injury, or loss to persons or property arising out of, relating to or in connection with its use of the Equipment."

During depositions, Weitz asserted that if K Building "broke it, caused damages, they were fully responsible for everything related to those damages, whether it be equipment or people or anything." After the incident which injured Trokey, K Building paid for the property damage to the aerial lift.

K Building's contract with Weitz also contained an indemnification provision, which read as follows:

"The undersigned Subcontractor or Supplier (‘Subcontractor’), and for its officers, directors, members, employees, agents and assigns, in consideration for its use of equipment (including, but not limited to, scaffolding) (‘Equipment’) provided by Contractor or others, hereby releases, waives and discharges Contractor and the Project Owner, and each of their respective affiliates, agents, officers, employees, insurers, sureties and other subcontractors and suppliers (collectively, the ‘Released Parties’) from any and all claims, losses, costs including attorneys' fees, damages, injury, death, expenses, and liability arising out of, relating to or in connection with the Subcontractor's use of the Equipment. Subcontractor further agrees, to the maximum extent allowed by applicable law, to defend, indemnify, and hold harmless the Released Parties from any and all claims by whomsoever made, losses, costs including attorneys' fees, damages, injury, death, expenses, and liability arising out of, relating to or in connection with any acts or omissions of, or use of the Equipment by, the Subcontractor or the Subcontractor's Agents, servants or employees, and regardless of the active or passive negligence or contribution by the Released Parties. The Subcontractor represents and affirms that it has or has caused the Equipment to be fully inspected and acknowledges that the Equipment is in good and safe operating condition and repair and accepts the Equipment in its present condition and repair including latent or hidden defects, if any. ... In the event any portion of this release and indemnity is held to be invalid, it shall be interpreted so as to allow the fullest release and indemnity permitted by law."

Trokey filed his petition for damages in Jackson County, Missouri. In the Missouri lawsuit, Trokey alleged that Great Plains was negligent for providing a lift with a flat tire because the lift tilted toward the flat tire, causing it to tip over. Specifically, Trokey alleged that Great Plains was negligent in the following ways:

"a. In failing to fix the underinflated tire on the Lift;

"b. In failing to warn [Trokey] that the Lift was dangerous and defective in its current condition;

"c. In failing to properly maintain the Lift;

"d. In failing to properly repair the Lift despite knowing of a dangerous condition;

"e. In representing that the Lift was safe for use;

"f. In failing to properly inspect the Lift;

"g. In failing to properly supply the Lift in a safe condition;

"h. In affirmatively claiming that the Lift was safe for use;

"i. In supplying the Lift to an operator that was unqualified to operate the Lift."

Trokey's Missouri lawsuit also included claims against Plumb for negligently operating the lift without training, but Trokey dismissed those claims with prejudice.

Great Plains filed a third-party petition against K Building and Weitz in the Missouri lawsuit, asserting claims of indemnification and contribution. But then Great Plains voluntarily dismissed its claims against K Building and Weitz without prejudice. Nothing in the record explains why Great Plains dismissed its claims against K Building and Weitz.

Great Plains settled with Trokey in October 2019.

While the Missouri lawsuit was ongoing, Great Plains filed a petition against K Building in Johnson County, Kansas, alleging breach of contract and seeking a declaratory judgment. Great Plains' second amended petition added claims for contractual indemnity, comparative implied indemnity, and contribution. Great Plains and K Building filed cross-motions for summary judgment, and the trial court granted summary judgment to K Building.

Great Plains timely appeals.

ANALYSIS

Did the contract's indemnity clause violate Kansas' anti-indemnity statute?

Great Plains argues that the trial court erred in holding that the indemnification provision violated the Kansas anti-indemnity statute. Although Great Plains is correct and the provision is valid, it is largely irrelevant. The one-action rule, not the Kansas anti-indemnity statute, prevents Great Plains from prevailing here.

An appellate court exercises unlimited review over the interpretation and legal effect of written instruments and is not bound by the lower court's interpretations or rulings. Whether a written instrument is ambiguous is a question of law subject to de novo review. Trear v. Chamberlain , 308 Kan. 932, 936, 425 P.3d 297 (2018).

If the relevant facts before the trial court were undisputed, fact questions may be resolved by the appellate court de novo. Simpson v. City of Topeka , 53 Kan. App. 2d 61, 68, 383 P.3d 165 (2016) (whether a party has defaulted on a contractual obligation is reviewed de novo if the relevant facts are undisputed); First Nat'l Bank of Omaha v. Centennial Park , 48 Kan. App. 2d 714, 725, 729-30, 303 P.3d 705 (2013) (whether a party has substantially performed under the contract or whether the implied duty of good faith and fair dealing was violated are reviewed de novo if underlying facts are undisputed); Inter-Americas Ins. Corp. v. Imaging Solutions Co. , 39 Kan. App. 2d 875, 885-86, 185 P.3d 963 (2008) (interpreting reasonable time provisions of UCC contract is a question of fact but becomes a question of law when facts are not in dispute).

Contracts are presumed legal. The burden lies on the party challenging the contract to prove it is illegal. Frazier v. Goudschaal , 296 Kan. 730, 749, 295 P.3d 542 (2013) (co-parenting agreement); National Bank of Andover v. Kansas Bankers Surety Co. , 290 Kan. 247, 257, 225 P.3d 707 (2010) (bankers surety bond).

The primary rule for interpreting written contracts is to ascertain the parties' intent. If the terms of the contract are clear, the parties' intent should be determined from the language of the contract without applying rules of construction. Trear , 308 Kan. at 936, 425 P.3d 297 ; see Schmitendorf v. Taylor , 58 Kan. App. 2d 292, 302, 468 P.3d 796 (2020).

Additionally,

" ‘ "[a]n interpretation of a contractual provision should not be reached merely by isolating one particular sentence or provision, but by construing and considering the entire instrument from its four corners. The law favors reasonable interpretations, and results which vitiate the purpose of the terms of the agreement to an absurdity should be avoided." ’ [Citations omitted.]" Waste Connections of Kansas, Inc. v. Ritchie Corp. , 296 Kan. 943, 963, 298 P.3d 250 (2013).

" ‘It is the duty of courts

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