This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-00-1602

 

Vern Lyrek,

Appellant,

 

vs.

 

Wick Building Systems, Inc.,

Respondent.

 

 

Filed April 24, 2001
Affirmed
Amundson, Judge

 

St. Louis County District Court

File No. C4-00-300492

 

Robert E. Mathias, 724 East Superior Street, Duluth, MN 55802 (for appellant)

 

James R. Cope, 415 First Street South, Virginia, MN 55792 (for respondent)

 

            Considered and decided by Amundson, Presiding Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

 

AMUNDSON, Judge

 

After a jury in an earlier lawsuit returned a verdict finding appellant and respondent each 45% negligent, appellant paid the entire judgment and brought this contribution action against respondent.  The district court granted summary judgment for respondent, finding that a defense and indemnity agreement signed during the earlier suit was enforceable.  Appellant contends it was not obligated to indemnify respondent for respondent's own negligence under the agreement and that any obligation to do so is unenforceable under Minn. Stat. § 337.02 (2000).  We affirm.

FACTS

 

Vern Lyrek, a building contractor, executed a general agreement to do business with Wick Building Systems, Inc. (WBS), a home manufacturer (first agreement).  That agreement contained an indemnification clause requiring Lyrek to indemnify WBS in the event of any liability assessed against it. 

In 1991, Verna and Stan Martin contracted with WBS to build their new home.  WBS, in turn, subcontracted certain work to Lyrek, including the installation of a garage floor and steps into the interior of the house.  On February 17, 1992, Verna Martin was injured while walking up the garage steps.  She filed a complaint against Lyrek and WBS, alleging that the concrete floor was installed at a grade lower than specified in the house design, leaving a 16-inch drop between the house and the garage floor.

Before trial, Lyrek agreed to defend and indemnify WBS in a separate agreement (second agreement).  Lyrek then took over defense of the trial and the jury found for Martin, apportioning liability 45% each to Lyrek and WBS.  After we affirmed the verdict on appeal, Lyrek paid the full amount of the judgment.

Lyrek then filed an action against WBS for contribution.  The district court entered summary judgment in WBS's favor, concluding that Lyrek agreed to defend and indemnify WBS for its own negligence in the second agreement.  This appeal followed.

D E C I S I O N

 

On appeal, Lyrek argues that (1) the first agreement did not clearly and unequivocally obligate him to indemnify WBS for its own negligence, (2) by statute, the first agreement was unenforceable to the extent it required Lyrek to indemnify WBS for its own negligence, and (3) the second agreement related only to Lyrek's own negligence as contracted for in the first agreement.

On an appeal from summary judgment, we determine whether there are any material fact issues and whether the district court erred in applying the law.  Lake Cable Partners v. Interstate Power Co., 563 N.W.2d  81, 85 (Minn. App. 1997), review denied (Minn. July 10, 1997).   Where there is no ambiguity, the interpretation of a contract is a question of law.  City of Virginia v. Northland Office Properties Ltd. Partnership, 465 N.W.2d 424, 427 (Minn. App. 1991), review denied (Minn. Apr. 18, 1991).  But where there is ambiguity, it is a question of fact.  Id.  Whether or not a contract is ambiguous is a legal determination.  Blattner v. Forster, 322 N.W.2d 319, 321 (Minn. 1982).

Minn. Stat. § 337.02 (2000) provides that an agreement to indemnify a party to a building and construction contract for liability for its own negligent actions will not be enforced.  To the extent the first agreement requires Lyrek to indemnify WBS for its own negligence, it is invalid.

This conclusion, however, does not end the inquiry.  After the Martins’ case was filed, Lyrek and WBS entered into the second agreement under which Lyrek agreed to defend and indemnify WBS in that case.  Lyrek asserts that section 337.02 also operates to make the second agreement unenforceable to the extent that it purports to require Lyrek to indemnify WBS for its own negligence.  But section 337.02 applies only to building and construction contracts, defined as contracts "for the design, construction, alteration, improvement, repair or maintenance of real property, highways, roads or bridges."  Minn. Stat. § 337.01 (2000).  The second agreement, executed during litigation, does not fall within this definition.  Rather, its purpose was to allow Lyrek to take over the defense of the Martins' claim and clarify the rights and obligations between WBS and Lyrek.  Because the agreement is not a "building or construction contract," Minn. Stat. § 337.02 does not apply to the second agreement.

            Lyrek next argues that he is not obligated to indemnify WBS for the portion of the jury award assigned to its negligence because the second agreement does not explicitly require him to do so.  An agreement that purports to indemnify a party for its own negligence must contain an express provision to that effectNat'l Hydro Systems v. M.A. Mortenson Co., 529 N.W.2d 690, 694 (Minn. 1995).  InHolmes v. Watson-Forsberg Co., 488 N.W.2d 473, 474-75 (Minn. 1992) the supreme court determined that an agreement in a construction contract requiring the indemnitor to obtain insurance coverage to cover the indemnitee for all damages from "all * * * claims for which the [indemnitee] may be or may be claimed to be[] liable" was enforceable even as to the indemntee's own negligence.  In the second agreement, Lyrek agreed to

indemnify and hold harmless [WBS] from any legal liability, awards, verdicts, judgments, debts, costs, expenses, attorneys’ fees, claims or other legal obligations of every kind, nature and description as a result of the incident which is the subject of this action.

This language is substantially similar to that in Holmes.    Although Holmes involved an interpretation of whether insurance coverage ought to have been provided by the indemnitor, we have previously relied on the language contained in the Holmes agreement to examine the validity of an indemnification agreement.  See Lake Cable Partners, 563 N.W.2d at 86. 

We conclude that the language in the second indemnification is clear and explicit and requires Lyrek to indemnify WBS for the portion of the jury award due to WBS's negligence.

            Affirmed.