[W] Stovall v. Universal Construction Company4/9/2004
The plaintiff, India Stovall, individually and on behalf of her minor children, David G. Stovall and Joel Stovall (hereinafter collectively referred to as "Stovall"), appeals from a summary judgment in favor of the defendant, Universal Construction Company, Inc., d/b/a Turner-Universal ("Turner"). Turner appeals from the dismissal of its third-party complaint against Penwal Industries, Inc. ("Penwal"). These appeals were consolidated. We affirm the judgment in Stovall's appeal (case number 1021938), and we reverse and remand in Turner's appeal (case number 1021953).
Facts and Procedural History
In anticipation of the 30th anniversary of man's first landing on the moon, the U.S. Space and Rocket Center in Huntsville sought to construct and erect a replica of the Saturn V rocket, the rocket that carried the Apollo 11 astronauts ("the rocket"). The Alabama Space Leasing Corporation entered into an agreement with Turner, a Delaware corporation, pursuant to which Turner was to design and build the rocket replica. Turner subcontracted with Penwal, a California corporation, for the assembly and erection of the rocket. The subcontract provided that Penwal was to "perform and furnish all the work, labor, services, materials, plant, equipment, tools, scaffolds, appliances, and other things necessary for ASSEMBLY AND ERECTION OF SATURN V ROCKET." (Capitalization in original.)
The subcontract defined the rocket as including, among other components:
"J. Rust inhibitive high quality paint on all exterior components on areas which may be exposed to rust.
"K. Exterior skin to be pre-painted with high quality paint with approved primer including all prominent graphics to simulate Saturn V Rocket at U.S. Space and Rocket Center."
The subcontract also stated that Turner, as the general contractor, would "furnish temporary lighting for night shifts sufficient to allow assembly." Finally, the subcontract listed several components and jobs for which Penwal was not responsible, including " emporary lighting or electrical."
Article XXIII of the subcontract is entitled "Liability for Damage and Personal Injury "; it reads:
"The Subcontractor [Penwal] hereby assumes entire responsibility and liability for any and all damage of any kind or nature whatever (including death resulting therefrom) to all persons, whether employees of any tier of [Penwal] or otherwise, and to all property caused by, resulting from, rising out of or occurring in connection with the execution of the Work, or in preparation for the Work, or any extension, modification, or amendment to the Work by change order or otherwise.
Except to the extent if any, expressly prohibited by statute and excluding from this indemnity such acts or omissions, if any, of the party indemnified for which it is not legally entitled to be indemnified by [Penwal] under applicable law, should any claims for such damage or injury (including death resulting therefrom) be made or asserted, whether or not such claims are based upon [Turner's] or the Owner's [U.S. Space and Rocket Center's] alleged active or passive negligence or participation in the wrong or upon any alleged breach of any statutory duty or obligation on the part of [Turner] or the [U.S. Space and Rocket Center], [Penwal] agrees to indemnify and save harmless [Turner] and the [U.S. Space and Rocket Center], their officers, agents, servants and employees from and against any and all such claims and further from and against any and all loss, cost, expense, liability, damage, penalties, fines or injury, including legal fees and disbursements, that [Turner] and the [U.S. Space and Rocket Center], their officers, age
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