{
  "id": 8547991,
  "name": "UNITED STATES FIDELITY AND GUARANTY COMPANY v. DAVIS MECHANICAL CONTRACTORS, INC.",
  "name_abbreviation": "United States Fidelity & Guaranty Co. v. Davis Mechanical Contractors, Inc.",
  "decision_date": "1972-06-28",
  "docket_number": "No. 7228DC221",
  "first_page": "127",
  "last_page": "130",
  "citations": [
    {
      "type": "official",
      "cite": "15 N.C. App. 127"
    }
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
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    {
      "cite": "50 S.E. 2d 288",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1948,
      "opinion_index": 0
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      "cite": "229 N.C. 534",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "year": 1948,
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        "/nc/229/0534-01"
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    {
      "cite": "82 S.E. 2d 362",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1954,
      "opinion_index": 0
    },
    {
      "cite": "240 N.C. 441",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8601663
      ],
      "year": 1954,
      "opinion_index": 0,
      "case_paths": [
        "/nc/240/0441-01"
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    },
    {
      "cite": "130 S.E. 2d 645",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1963,
      "opinion_index": 0
    },
    {
      "cite": "259 N.C. 317",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8560393
      ],
      "year": 1963,
      "opinion_index": 0,
      "case_paths": [
        "/nc/259/0317-01"
      ]
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  "analysis": {
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  "last_updated": "2023-07-14T17:26:51.335715+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judge Vaughn concurs.",
      "Judge Brock concurs in the result."
    ],
    "parties": [
      "UNITED STATES FIDELITY AND GUARANTY COMPANY v. DAVIS MECHANICAL CONTRACTORS, INC."
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nFor the purpose of our opinion, we assume, without deciding, that the defendant, subcontractor, agreed to indemnify the contractor, Daniel, in the following language:\n\u201cIndemnity Agreement. The Subcontractor covenants to indemnify and save harmless and exonerate the Contractor and the Owner of and from all liability, claims and demands for bodily injury and property damage arising out of the work undertaken by the Subcontractor, its employees, agents or its Subcontractors, and arising out of any other operation no matter by whom performed for and on behalf of the Subcontractor, whether or not due in whole or in part to conditions', acts or omissions done or permitted by the Contractor or Owner.\u201d\nPlaintiff\u2019s claim against the defendant under the indemnity clause in the contract between Daniel and the defendant is the same as, but no greater than, that of Daniel. 7 Strong, N. C. Index 2d, Subrogation, pp. 88-89; Insurance Co. v. Faulkner, 259 N.C. 317, 130 S.E. 2d 645 (1963); Montsinger v. White, 240 N.C. 441, 82 S.E. 2d 362 (1954). Therefore, before we can determine whether the trial court erred in dismissing plaintiff\u2019s action for failure to state a claim upon which relief could be granted, we must first determine whether Daniel could have maintained an action under the indemnity clause of the contract against the defendant to recover legal expenses incurred in defending the wrongful death suit which the defendant, indemnitor, refused to defend. The answer is no.\nIn Coach Co. v. Coach Co., 229 N.C. 534, 50 S.E. 2d 288 (1948) where the plaintiff sought to recover under the indemnity clause in a contract between the two coach companies whereby the defendant Coach Company was given authority to operate motor buses over certain franchise routes of the plaintiff Coach Company, with provision in the contract that defendant should indemnify and save harmless the plaintiff from any and all damages or loss occasioned by the operation of defendant\u2019s motor vehicles over these franchise routes, our Supreme Court held that in the absence of an express agreement the in-demnitor could not be held liable for legal expenses incurred by the indemnitee in defending suits brought against both the indemnitor and the indemnitee. In the Coach Co. case, in affirming the trial court\u2019s order sustaining the defendant\u2019s demurrer to the complaint, the Supreme Court said:\n\u201cThe language in which the contract of indemnity is couched, as set out in the complaint, affords ground for recovery for damages or loss occasioned plaintiff by the operation of defendant\u2019s buses over plaintiff\u2019s franchise routes, but is not sufficiently comprehensive to include reimbursement for the fees of attorneys employed by plaintiff to defend suits brought against the defendant or both defendant and plaintiff. There is no allegation that any damages or costs were adjudged against or paid by the plaintiff, or that loss was occasioned by the operation of defendant\u2019s buses, or that plaintiff was called upon or required to defend, or that defendant failed to pay all damages and costs growing out of the suits referred to. * * * In the absence of an express agreement therefor this would not include amounts paid for attorneys\u2019 fees. (Citations omitted.) Nor is the expense of employing attorneys in the successful defense of a suit for damages for tort allowable as part of the costs or recoverable in the absence of an express agreement therefor. (Citations omitted.) Expense unnecessarily incurred for attorneys\u2019 fees may not be recovered. (Citations omitted.)\u201d\nThus, the language in the contract of indemnity in the present case affords grounds for recovery for damages and loss occasioned Daniel by work undertaken by the subcontractor, but is not sufficiently comprehensive to include reimbursement for the fees of attorneys employed by Daniel to defend the wrongful death action brought against the defendant and Daniel. In the present case, as in Coach Co., there is no allegation in the complaint that any damages were adjudged against or paid by Daniel, or that loss was occasioned by the performance of the work under the contract by the defendant, or that Daniel was called upon or required to defend the wrongful death suit. The allegations in the present complaint show affirmatively that the wrongful death action was successfully defended and dismissed at no loss or expense to Daniel.\nTherefore, we hold that since the indemnitee, Daniel, would not have had a claim against the indemnitor to recover attorneys\u2019 fees incurred in defending the wrongful death action, the plaintiff, Guaranty Company, as subrogee, would have no claim. The plaintiff, Guaranty Company, as subrogee, has failed to state a claim against defendant upon which relief can be granted, and the Court correctly allowed the motion to dismiss.\nAffirmed.\nJudge Vaughn concurs.\nJudge Brock concurs in the result.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Van Winkle, Buck, Wall, Starnes and Hyde by Emerson D. Wall for plaintiff appellant.",
      "Roberts and Cogburn by Landon Roberts for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "UNITED STATES FIDELITY AND GUARANTY COMPANY v. DAVIS MECHANICAL CONTRACTORS, INC.\nNo. 7228DC221\n(Filed 28 June 1972)\n1. Subrogation\u2014 indemnity contract \u2014 claim by insurer of indemnitee\nClaim by a contractor\u2019s insurer against a subcontractor under an indemnity clause in a contract between the contractor and subcontractor for counsel fees expended by the insurer in defending a wrongful death action against the contractor and subcontractor was the same as, but no greater than, that of the contractor.\n2. Indemnity \u00a7 2\u2014 agreement by subcontractor \u2014 action against contractor and subcontractor \u2014 attorneys\u2019 fees of contractor\nAgreement in which a subcontractor covenanted to indemnify a contractor from liability for bodily injury arising out of the work undertaken by the subcontractor was not sufficiently comprehensive to include fees of attorneys employed by the contractor to defend a wrongful death action brought against the contractor and subcontractor which the subcontractor had refused to defend.\nJudge BROCK concurs in the result.\nAppeal by plaintiff from Israel, District Judge, 9 December 1971 Session of District Court held in Buncombe County.\nThis is a civil action wherein plaintiff United States Fidelity and Guaranty Company (Guaranty Company) seeks to recover from the defendant Davis Mechanical Contractors, Inc., counsel fees in the amount of $1,444.86 expended by plaintiff in defending a wrongful death action instituted against the defendant and Daniel Construction Company (Daniel), plaintiff\u2019s insured. In its complaint the plaintiff alleged that Daniel subcontracted certain work on a construction project to the defendant and that the contract contained an indemnity clause \u201cwhereby the defendant covenanted to indemnify and save harmless Daniel Construction Company from all liability claims and demands for bodily injury and property damage arising out of the work undertaken by the defendant, its employees, agents or its subcontractors.\u201d On 16 August 1968 the administrator of Thad Hardin, who was killed on the job site, instituted an action for damages for wrongful death against the defendant and Daniel. The defendant refused Daniel\u2019s request that it defend the wrongful death action pursuant to the \u201cindemnity agreement.\u201d Thereafter, as Daniel\u2019s liability insurance carrier, the plaintiff, incurring legal expenses in the amount of $1,444.86, employed counsel who successfully defended the suit and obtained a dismissal thereof.\nFrom an order allowing the defendant\u2019s motion to dismiss for failure of the complaint to state a claim upon which relief could be granted, plaintiff appealed.\nVan Winkle, Buck, Wall, Starnes and Hyde by Emerson D. Wall for plaintiff appellant.\nRoberts and Cogburn by Landon Roberts for defendant appellee."
  },
  "file_name": "0127-01",
  "first_page_order": 151,
  "last_page_order": 154
}