{ "id": 9251282, "name": "LARRY E. JACKSON, Administrator of the Estate of JEREMY SCOTT JACKSON, Plaintiff v. ASSOCIATED SCAFFOLDERS AND EQUIPMENT COMPANY, INC. and VAN THOMAS CONTRACTORS, INC., Defendants; ASSOCIATED SCAFFOLDERS AND EQUIPMENT COMPANY, INC., Third-Party Plaintiff-Appellant v. COMFORT ENGINEERS, INC., Third-Party Defendant-Appellee", "name_abbreviation": "Jackson v. Associated Scaffolders & Equipment Co.", "decision_date": "2002-09-03", "docket_number": "No. COA01-608", "first_page": "687", "last_page": "693", "citations": [ { "type": "official", "cite": "152 N.C. App. 687" } ], "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." }, "cites_to": [ { "cite": "486 S.E.2d 443", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "446" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 602", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11712298 ], "year": 1997, "pin_cites": [ { "page": "608" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0602-01" ] }, { "cite": "147 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "901", "parenthetical": "\"Courts cannot under the guise of construction rewrite contracts executed by the litigants.\"" } ], "opinion_index": 0 }, { "cite": "267 N.C. 229", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558919 ], "year": 1966, "pin_cites": [ { "page": "233", "parenthetical": "\"Courts cannot under the guise of construction rewrite contracts executed by the litigants.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/267/0229-01" ] }, { "cite": "559 S.E.2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0 }, { "cite": "355 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219935 ], "year": 2002, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0274-01" ] }, { "cite": "556 S.E.2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 360", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138320, 138522, 138379, 138486 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0360-02", "/nc/354/0360-03", "/nc/354/0360-04", "/nc/354/0360-01" ] }, { "cite": "548 S.E.2d 807", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "144 N.C. App. 503", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435415 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/144/0503-01" ] }, { "cite": "368 S.E.2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1988, "pin_cites": [ { "page": "438" }, { "page": "438" }, { "page": "439" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 310", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524168 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/90/0310-01" ] }, { "cite": "528 S.E.2d 568", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 589", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155921 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0589-01" ] }, { "cite": "540 S.E.2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 99", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155682, 1155575, 1155783, 1155661, 1155767 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0099-02", "/nc/351/0099-03", "/nc/351/0099-05", "/nc/351/0099-01", "/nc/351/0099-04" ] }, { "cite": "516 S.E.2d 911", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "913" }, { "page": "913" }, { "page": "913" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 65", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11142932 ], "year": 1999, "pin_cites": [ { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0065-01" ] }, { "cite": "182 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "395" } ], "opinion_index": 1 }, { "cite": "279 N.C. 192", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566398 ], "year": 1971, "pin_cites": [ { "page": "203" } ], "opinion_index": 1, "case_paths": [ "/nc/279/0192-01" ] }, { "cite": "194 S.E.2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "531-32" } ], "opinion_index": 1 }, { "cite": "282 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568164 ], "year": 1973, "pin_cites": [ { "page": "658" } ], "opinion_index": 1, "case_paths": [ "/nc/282/0643-01" ] }, { "cite": "385 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "555" } ], "opinion_index": 1 }, { "cite": "96 N.C. App. 312", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521830 ], "year": 1989, "pin_cites": [ { "page": "315-16" } ], "opinion_index": 1, "case_paths": [ "/nc-app/96/0312-01" ] } ], "analysis": { "cardinality": 702, "char_count": 14773, "ocr_confidence": 0.776, "pagerank": { "raw": 1.6658925774145737e-07, "percentile": 0.6951658185477223 }, "sha256": "07a60a926e161b33ff80146ef797c06328c3eb959fc977aad9e0e3157540ccfb", "simhash": "1:8b91cdf8905e13f4", "word_count": 2339 }, "last_updated": "2023-07-14T14:40:03.287783+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge HUDSON concurs.", "Chief Judge EAGLES dissents with a separate opinion." ], "parties": [ "LARRY E. JACKSON, Administrator of the Estate of JEREMY SCOTT JACKSON, Plaintiff v. ASSOCIATED SCAFFOLDERS AND EQUIPMENT COMPANY, INC. and VAN THOMAS CONTRACTORS, INC., Defendants ASSOCIATED SCAFFOLDERS AND EQUIPMENT COMPANY, INC., Third-Party Plaintiff-Appellant v. COMFORT ENGINEERS, INC., Third-Party Defendant-Appellee" ], "opinions": [ { "text": "BRYANT, Judge.\nOn 27 October 1997, third-party defendant Comfort Engineers, Inc., contracted with third-party plaintiff Associated Scaffolders and Equipment Company, Inc., for Associated to erect a scaffold on the campus of the University of North Carolina at Chapel Hill. The scaffold was to be used by Comfort to install an exhaust system at the Medical Sciences Building. The agreement between Comfort and Associated for the erection of the scaffold was memorialized in a written rental agreement prepared by Associated.\nWhile working on the installation project, Comfort employee Jeremy S. Jackson, fell from the scaffold, and died as a result of the fall. Through its insurer, Comfort paid workers\u2019 compensation benefits to Jackson\u2019s estate.\nOn 14 April 1999, a representative of Jackson\u2019s estate instituted a wrongful death action against Associated and Van Thomas General Contractors, Inc. On 2 July 1999, Associated filed a third-party complaint against Comfort claiming contractual indemnification and breach of contract. Comfort made a motion for judgment on the pleadings pursuant to Rule 12(c) of the North Carolina Rules of Civil Procedure. This matter came on for hearing at the 13 March 2000 session of Durham County Superior Court with the Honorable James C. Spencer, Jr., presiding. By order filed 17 March 2000, Comfort\u2019s Rule 12(c) motion was granted.\nOn 11 December 2000, Jackson\u2019s estate settled its suit with Associated and Van Thomas; and that case was voluntarily dismissed with prejudice. On 10 January 2001, Associated filed notice of appeal from the order granting Comfort\u2019s Rule 12(c) motion.\nPursuant to Rule 12(c) of the North Carolina Rules of Civil Procedure, a court may dispose of claims or defenses when the lack of merit of the claim or defense is apparent upon review of the pleadings. See N.C. R. Civ. P. 12(c); Brisson v. Kathy A. Santoriello, M.D., P.A., 134 N.C. App. 65, 67, 516 S.E.2d 911, 913 (1999), review allowed, 351 N.C. 99, 540 S.E.2d 351, aff\u2019d in part as modified, 351 N.C. 589, 528 S.E.2d 568 (2000). The granting of judgment on the pleadings is proper when there does not exist a genuine issue of material fact, and the only issues to be resolved are issues of law. Brisson, at 67, 516 S.E.2d at 913. In reviewing a motion for judgment on the pleadings, the court must consider the evidence in the light most favorable to the non-moving party, accepting as true the factual allegations as pled by the non-moving party. Id. at 67-68, 516 S.E.2d at 913.\nI. Indemnification Clause\nFirst, Associated argues that the North Carolina Workers\u2019 Compensation Act explicitly recognizes a third-party\u2019s right to enforce an express contract of indemnity against an employer. Associated argues that an indemnity provision in a construction contract is valid and enforceable, and is not barred by N.C.G.S. \u00a7 22B-1, insofar as it does not purport to indemnify the indemnitee (Associated) for the indemnitee\u2019s own negligence. (Both parties concede that the contract at issue is a construction contract.) Associated states that the indemnification clauses on which it relies, does not purport to indemnify Associated for its own negligent acts, but only seeks indemnification for Comfort\u2019s negligent acts. In addition, Associated argues that its negligence has not been established as a matter of law, and judgment on the pleadings was inappropriate. We disagree.\nN.C.G.S. \u00a7 22B-1 (2001) provides in pertinent part:\nAny promise or agreement in, or in connection with, a contract or agreement relative to the design, planning, construction, alteration, repair or maintenance of a building, structure, highway, road, appurtenance or appliance, including moving, demolition and excavating connected therewith, purporting to indemnify or hold harmless the promisee, the promisee\u2019s independent contractors, agents, employees, or indemnitees against liability for damages arising out of bodily injury to persons or damage to property proximately caused by or resulting from the negligence, in whole or in part, of the promisee, its independent contractors, agents, employees, or indemnitees, is against public policy and is void and unenforceable. Nothing contained in this section shall prevent or prohibit a contract, promise or agreement whereby a promisor shall indemnify or hold harmless any promisee or the promisee\u2019s independent contractors, agents, employees or indem-nitees against liability for damages resulting from the sole negligence of the promisor, its agents or employees.\nAssociated relies on the following provisions of its contract with Comfort, as evidence of Comfort\u2019s obligation to indemnify Associated as relates to the underlying action:\nComfort Engineers will hold harmless and defend Associated Scaffolding Co., Inc. and its agents and employees from all suits and action, including attorney\u2019s fees and all costs of litigation and judgment of any name and description arising out of or incidental to the performance of this contract or work performed thereunder.\n16. SAFETY REGULATIONS: LESSEE SHALL: (1) erect, maintain and use the leased equipment in a safe and proper manner; (2) comply with all applicable laws, ordinances, rules, regulations and orders of any public authority, including, but not limited to, ALL FEDERAL OCCUPATIONAL SAFETY AND HEALTH ACT (OSHA) and State regulations, having jurisdiction for the safety of persons or property; and (3) comply with any rules or regulations promulgated by lessor with respect to the leased equipment, its manner of erection and use.\n17. Lessee agrees to indemnify and hold lessor free and harmless from any and all liability for loss, damage, or personal injury which results from non-compliance with any portion of this Paragraph, or from non-compliance with any law, regulation or other safety order.\nAssociated argues before this Court that in its action against Comfort, Associated only seeks indemnification for costs it may incur as a result of Comfort\u2019s negligence. Moreover, Associated concedes in its brief that N.C.G.S. \u00a7 22B-1 prevents Associated from being indemnified for its own negligence. However, the indemnification provisions at issue here violate N.C.G.S. \u00a7 22B-1 and are not severable from the remainder of the contract. Because the agreements at issue here undeniably purport to indemnify Associated for its own actions, they are void and unenforceable under this statute.\nThe case of Miller Brewing Co. v. Morgan Mechanical Contractors, Inc., 90 N.C. App. 310, 368 S.E.2d 438 (1988), is more applicable to the instant case than the case relied on by Associated, Bridgestone/Firestone, Inc. v. Ogden Plant Maint. Co. of N.C., 144 N.C. App. 503, 548 S.E.2d 807, review on add\u2019l issues denied, 354 N.C. 360, 556 S.E.2d 297 (2001), aff'd, 355 N.C. 274, 559 S.E.2d 786 (2002) (per curiam). In Miller, the plaintiff filed a declaratory judgment action seeking to pursue indemnification from a contractor, Morgan Mechanical, after one of Morgan\u2019s employees was injured on the plaintiffs premises. See Miller at 311, 368 S.E.2d at 438. The indemnification provisions were on the back of the contract, and stated:\nSeller is to save harmless and indemnify Buyer from any and all judgments, costs, expenses, including attorneys\u2019 fees, and claims on account of damaged property or personal and bodily injuries (including death) which may be sustained by Seller, Buyer, Seller\u2019s or Buyer\u2019s employe [sic], or other persons arising out of or in any way connected with the work done or goods furnished under this [agreement] ....\nId. at 313, 368 S.E.2d at 438. This Court held that these provisions were invalid under N.C.G.S. \u00a7 22B-1, and were not converted into an \u201cinsurance contract\u201d by language requiring that Morgan obtain insurance to cover any such losses. Id. at 316-17, 368 S.E.2d at 439.\nThe contract language at issue here is not distinguishable in any meaningful respect from the language this Court held void in Miller. In addition, the related agreement under which Comfort leased equipment for the job, contained similar provisions, and included the language, \u201cPURPOSE OF THIS CLAUSE: IT IS THE PURPOSE OF THIS CLAUSE TO SHIFT THE RISK OF ALL CLAIMS RELATED TO THE LEASED PROPERTY TO THE LESSEE [Comfort] DURING THE ENTIRE TERM OF THE LEASE.\u201d\nComfort argues that the language which violates N.C.G.S. \u00a7 22B-1 is not severable from the remainder of the contract. We agree with this argument since, as Comfort points out, we would be required to add language, rather than simply excise portions of the agreements which violate the statute. See Carson v. National Co., 267 N.C. 229, 233, 147 S.E.2d 898, 901 (1966) (\u201cCourts cannot under the guise of construction rewrite contracts executed by the litigants.\u201d). The trial court correctly granted the motion for judgment on the pleadings in favor of Comfort. This assignment of error is therefore overruled.\nII. Breach of Contract\nSecond, Associated argues that its pleadings adequately state a claim that Comfort breached its contract to maintain and use the scaffold in accordance with OSHA and other applicable safety regulations.\n\u201cTo state a claim for breach of contract, the complaint must allege that a valid contract existed between the parties, that defendant breached the terms thereof, the facts constituting the breach, and that damages resulted from such breach.\u201d Claggett v. Wake Forest University, 126 N.C. App. 602, 608, 486 S.E.2d 443, 446 (1997).\nHowever, as previously stated, one of the invalid indemnification provisions is not severable from the contract at issue here, rendering the entire contract invalid. As there can be no breach of contract absent the existence of a valid contract, this assignment of error is overruled.\nAFFIRMED.\nJudge HUDSON concurs.\nChief Judge EAGLES dissents with a separate opinion.", "type": "majority", "author": "BRYANT, Judge." }, { "text": "EAGLES, Chief Judge,\ndissenting.\nI respectfully dissent. I disagree with the majority\u2019s conclusion that the illegal part of the contract cannot be severed from the rest of the contract. First, the illegal provision is not a central feature of the contract, so it may be severed. Second, the contract may be fully enforced without the illegal section since no other part of the contract would be affected by removal of the offending paragraph.\nAll parties concede that Paragraph 15 of the contract is illegal under G.S. \u00a7 22B-1, because it indemnifies Associated from its own negligence. The other two indemnification clauses referred to in the majority opinion do not violate the mandate of G.S. \u00a7 22B-1. Paragraphs 16 and 17 of the contract indemnify the lessor for liability for personal injury as a result of the lessee\u2019s failure to comply with safety regulations. Since these provisions are enforceable, I vote to sever the unenforceable paragraph and leave the remainder of the contract intact.\nFirst, the indemnity agreement in Paragraph 15 of the contract is not a central feature of the contract. The overall purpose of the contract concerns the lease of scaffolding equipment, not the division of liability. When a contract provision violates G.S. \u00a7 22B-1, but is not a central feature of that contract, the illegal provision is severable from the otherwise valid agreement. See International Paper Co. v. Corporex Constructors, Inc., 96 N.C. App. 312, 315-16, 385 S.E.2d 553, 555 (1989). Since the indemnification clause of Paragraph 15 is not a central feature of the contract, it is severable.\n\u201cWhen a contract contains provisions which are severable from an illegal provision and are in no way dependent upon the enforcement of the illegal provision for their validity, such provisions may be enforced.\u201d Rose v. Materials Co., 282 N.C. 643, 658, 194 S.E.2d 521, 531-32 (1973). Here, Paragraph 15 of the contract is an illegal provision. However, its enforcement is not dependent on any other provision of the contract. Paragraph 15 may be removed, leaving the rest of the contract fully enforceable, since the remainder of the contract is not dependent on the existence of Paragraph 15.\nI disagree with the majority\u2019s opinion that this Court would be required to add language to the contract, instead of severing the one paragraph that violates G.S. \u00a7 22B-1. In this case Paragraph 15 is a specific and distinct part of the contract which may be severed without any great difficulty. Once the illegal portion is removed, \u201cthe contract will be given effect as if the provision so violative of public policy had not been included therein.\u201d Gore v. Ball, Inc., 279 N.C. 192, 203, 182 S.E.2d 389, 395 (1971). There is no necessity to add language to the contract in order to enforce it. Instead, the lease contract would be interpreted as if Paragraph 15 never existed, with Paragraphs 16 and 17 constituting the parties\u2019 indemnity agreement.\nFor these reasons, I would sever Paragraph 15 from the remainder of the contract, reverse the trial court, and remand for a hearing to determine defendant-appellee\u2019s liability.", "type": "dissent", "author": "EAGLES, Chief Judge," } ], "attorneys": [ "Millberg & Gordon, PLLC, by William W. Stewart and John G. Millberg, for the third-party plaintiff.", "Howard, Stallings, From & Hutson, PA, by B. Joan Davis, Brian E. Moore and Joseph H. Stallings, for the third-party defendant." ], "corrections": "", "head_matter": "LARRY E. JACKSON, Administrator of the Estate of JEREMY SCOTT JACKSON, Plaintiff v. ASSOCIATED SCAFFOLDERS AND EQUIPMENT COMPANY, INC. and VAN THOMAS CONTRACTORS, INC., Defendants ASSOCIATED SCAFFOLDERS AND EQUIPMENT COMPANY, INC., Third-Party Plaintiff-Appellant v. COMFORT ENGINEERS, INC., Third-Party Defendant-Appellee\nNo. COA01-608\n(Filed 3 September 2002)\n1. Indemnity\u2014 construction contract \u2014 motion for judgment on the pleadings\nThe trial court did not err in a breach of contract action by granting third-party defendant\u2019s N.C.G.S. \u00a7 1A-1, Rule 12(c) motion for judgment on the pleadings regarding an indemnity provision in a construction contract, because the indemnification provisions at issue are in violation of N.C.G.S. \u00a7 22B-1 and are not severable from the remainder of the contract since the agreements at issue purport to indemnify third-party plaintiff for its own negligent actions.\n2. Contracts\u2014 breach \u2014 failure to state a claim\nThe trial court did not err in a breach of contract action by granting third-party defendant\u2019s N.C.G.S. \u00a7 1A-1, Rule 12(c) motion for judgment on the pleadings based on third-party plaintiff\u2019s failure to state a claim, because: (1) one of the invalid indemnification provisions in the pertinent contract is not sever-able, rendering the entire contract invalid; and (2) there can be no breach of contract absent the existence of a valid contract.\nChief Judge Eagles dissenting.\nAppeal by third-party plaintiff from order entered 17 March 2000 by Judge James C. Spencer, Jr., in Durham County Superior Court. Heard in the Court of Appeals 15 April 2002.\nMillberg & Gordon, PLLC, by William W. Stewart and John G. Millberg, for the third-party plaintiff.\nHoward, Stallings, From & Hutson, PA, by B. Joan Davis, Brian E. Moore and Joseph H. Stallings, for the third-party defendant." }, "file_name": "0687-01", "first_page_order": 715, "last_page_order": 721 }