may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Kimberly Christiansen, et al.,
Corporate Property Investors,
Riscomp Industries, Inc.
f/k/a CBM Industries, Inc.,
Filed June 22, 1999
Reversed and remanded
Dakota County District Court
File No. C3-97-9275
Katherine A. McBride, Kevin J. Craig, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 S. Sixth St., Minneapolis, MN 55402 (for respondent)
J. Mark Catron, Hansen, Dordell, Bradt, Odlaug & Bradt, P.L.L.P., 3900 Northwoods Dr., Ste. 250, St. Paul, MN 55112 (for appellant)
Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Willis, Judge.
After slipping and falling on an allegedly wet floor at the Burnsville Shopping Center, Kimberly Christiansen sued respondent Corporate Property Investors (CPI), the mall's owner, and appellant Riscomp Industries (Riscomp), the mall's janitorial service provider. CPI cross-claimed against Riscomp, claiming Riscomp was obligated to indemnify CPI against Christiansen's claim.
CPI and Riscomp both moved for summary judgment against Christiansen, arguing that she had failed to present any evidence that they either caused or knew about the water allegedly on the floor when Christiansen slipped and fell. CPI also moved for summary judgment against Riscomp on its cross-claim.
The district court granted CPI and Riscomp summary judgment and dismissed Christiansen's claims against them; Christiansen has not appealed. The court also granted CPI's motion for summary judgment against Riscomp, concluding that the vendor contract obligated Riscomp to reimburse CPI for attorney fees and costs incurred in defending the action.
Riscomp appeals from the district court's grant of summary judgment to CPI on its cross-claim and from the court's $19,819.60 award to CPI in fees and costs. Because genuine issues of material fact exist, the district court's grant of summary judgment to CPI on its cross-claim was premature. We therefore reverse and remand.
Construction of language in an indemnity agreement is a question of law for the court. Seifert v. Regents of University of Minn., 505 N.W.2d 83, 86 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993). But if fact issues exist with respect to whether an indemnity agreement applies in any particular case, those issues are for a jury to consider. New Amsterdam Cas. Co. v. Lundquist, 293 Minn. 274, 287, 198 N.W.2d 543, 551 (1972); see Turner v. Alpha Phi Sorority House, 276 N.W.2d 63, 66 (Minn. 1979) (where construction of indemnity contract depends on extrinsic evidence, there is question of fact for jury).
Under the terms of the vendor contract, Riscomp was responsible to "[d]amp mop entire [entrance] area as needed" daily and to give "[p]riority * * * to wet or dry spills." Riscomp agreed to "indemnify, defend and hold [CPI] harmless from and against any claim * * *, liability, damage or expense (including attorneys' fees) that [CPI] may incur relating to, arising out of or existing by reason of" Riscomp's performance or nonperformance of the contract. Riscomp further agreed to maintain insurance coverage "against all claims, demands or actions for bodily injury or property damage arising from, related to or in any way connected with the conduct and operation of [Riscomp's] business, or caused by actions or omissions to act where there is a duty to act."
Unlike other, broader, indemnity agreements, Riscomp has not agreed to indemnify CPI for any personal injury claim arising out of a slip and fall at the Burnsville Mall. Cf. Bogatzki v. Hoffman, 430 N.W.2d 841, 843-45 (Minn. App. 1988) (involving lease provision in which tenant agreed to indemnify lessor against any and all claims arising out of any act or occurrence on premises), review denied (Minn. Dec. 21, 1988). Rather, Riscomp has agreed only to indemnify CPI for any claims "relating to, arising out of or existing by reason of" Riscomp's performance or nonperformance of the contract. This type of clause has been interpreted to require a "temporal, geographical, or causal nexus between the [indemnitor's] work and the injury which gives rise to liability." National Hydro Sys. v. M.A. Mortenson Co., 529 N.W.2d 690, 693 (Minn. 1995) (quotation omitted) (requiring "but-for" causal connection to exist between injury and indemnitor's work).
Nor has Riscomp agreed to protect CPI from its own negligent acts because it has not agreed to indemnify CPI against "`claims for which [CPI] may be or may be claimed to be, liable.'" Katzner v. Kelleher Const., 545 N.W.2d 378, 382 (Minn. 1996) (quoting Holmes v. Watson-Forsberg Co., 488 N.W.2d 473, 474 (Minn. 1992)). Rather, Riscomp has only agreed to indemnify CPI for claims relating to Riscomp's work under the contract. See Katzner, 545 N.W.2d at 381-82 (rejecting indemnitee's argument that contract containing language similar to that involved here required indemnitor to protect indemnitee from all claims, irrespective of whether those claims arose out of indemnitee's own negligence); see also Braegelmann v. Horizon Dev. Co., 371 N.W.2d 644, 646 (Minn. App. 1985) (affirming utilization of "comparative negligence" type interpretation of indemnity agreement, under which each party is accountable to extent their negligence or acts contributed to injury), review denied (Minn. Oct. 11, 1985).
Finally, CPI's cross-claim seeks only indemnification from Riscomp "for any and all claims" of Christiansen "to include payment of attorneys' fees incurred by CPI in the defense of the litigation." CPI does not allege that Riscomp breached its vendor contract by initially refusing to defend CPI from Christiansen's lawsuit. Thus, if Christiansen's claim is eventually determined to fall outside the indemnification agreement, CPI cannot claim that Riscomp nevertheless breached that contract by refusing to defend CPI against Christiansen's claim. Cf. Lanoue v. Fireman's Fund Am. Ins. Cos., 278 N.W.2d 49, 54, 55 (Minn. 1979) (action against insurer seeking to force insurer to defend or to recover costs of defense construed as breach of contract, entitling insured to also recover costs of that action).
Christiansen's complaint against CPI and Riscomp alleged that she fell because the floor was wet and that CPI and Riscomp were negligent and careless in the "maintenance, supervision, repair, and care of said premises." By deposition, Christiansen testified that it was raining that day and that when she entered the mall, she could not wipe her feet off because there were no mats inside the doorway. She further testified that she could not recall seeing any accumulation of water on the floor before she fell, but that her pants were wet after the fall.
When the district court granted summary judgment and dismissed Christiansen's case, it did so because Christiansen had failed to present any evidence that either Riscomp or CPI caused the floor to be wet or that either Riscomp or CPI had noticed that the floor was wet. Christiansen's failure to meet her burden of proving a prima facie negligence case against CPI or Riscomp is not, however, dispositive of CPI's cross-claim.
The district court took the view of the evidence most favorable to Christiansen and assumed that there was water on the floor in the area where Christiansen fell. The court made no findings on where the water came from or whether there was water on the floor prior to Christiansen's fall or only after her fall. Indeed, findings on disputed factual issues are inappropriate on summary judgment. Nord v. Herreid, 305 N.W.2d 337, 339 (Minn. 1981).
If water accumulated or was pooled, puddled, or standing on the floor prior to Christiansen's fall, her claim would fall within the scope of duties under the vendor contract, which obligated Riscomp to "[d]amp mop [the entrances] as needed" and to give "[p]riority to wet * * * spills." If the water came from Christiansen's shoes because she failed to wipe her feet adequately, her claim is not related to Riscomp's duties. If Christiansen fell because of some action or inaction on CPI's part, such as CPI's failure to place mats near the entrance, her claim is not related to Riscomp's duties. Because these genuine issues of material fact exist, we reverse the district court's grant of summary judgment on CPI's cross-claim and remand for further consideration.
Finally, Riscomp challenges the amount of attorney fees and costs awarded to CPI, and CPI requests attorney fees on appeal. Given our decision to reverse the grant of summary judgment, we decline to address these additional issues in detail, other than to note that Riscomp agreed only to indemnify CPI for fees relating to Riscomp's performance or nonperformance under the contract. Compare Seifert, 505 N.W.2d at 86-87 (where indemnitor agreed to indemnify for attorney fees "arising out of or resulting from the performance, or lack of performance of the work," indemnitee not entitled to indemnification for attorney fees and costs incurred in prosecuting its right to indemnification, only those fees and costs incurred in defending against underlying negligence claim) with Van Vickle v. C.W. Scheurer & Sons, 556 N.W.2d 238, 240 (Minn. App. 1996) (subcontractor liable for legal fees incurred in prosecuting indemnity claim, where subcontractor specifically agreed to indemnify contractor for "legal fees and disbursements paid or incurred to enforce the provisions of this [indemnity] paragraph"). Thus, Riscomp is not obligated to indemnify CPI for fees related to CPI's prosecution of its cross-claim.
Reversed and remanded.