Facts

Plaintiff Fru-Con Construction was the general contractor on a large construction project. Plaintiff Zurich North America was Fru-Con's workers' compensation carrier. Fontana Steel was a subcontractor of Fru-Con.

Fru-Con employee, Wayne Guinn, tripped on the jobsite and injured his knee. He filed a workers' compensation claim and received $63,822 in benefits. Fru-Con sought reimbursement from Fontana for benefits paid pursuant to an indemnity provision in the subcontract, which provided that Fontana would indemnify Fru-Con for actions arising out of its work. The indemnity provision also provided that Fontana would not indemnify Fru-Con for incidents arising out of Fru-Con's sole negligence. Fontana refused to indemnify Fru-Con and so Fru-Con filed a breach of contract action against Fontana.

PLAINTIFFS' CONTENTIONS:
Wayne Guinn claimed that he tripped and fell over rebar placed on the jobsite by Fontana. Guinn's fall was not witnessed by anyone.

Fru-Con claimed that Guinn's fall arose out of Fontana's work and therefore Fontana breached the contract by failing to provide indemnity.

DEFENDANT'S CONTENTIONS:
Fontana argued that if Guinn in fact tripped over its rebar, the incident was the sole responsibility of Fru-Con or Fru-Con's employee. Fru-Con was solely responsible for instructing Fontana where to put its rebar on the jobsite. Guinn chose to walk through the rebar staging area instead of using clear pathways provided to access the structure on which he was working.

Settlement Discussions

An offer of $7,500 was rejected.

Damages

Fru-Con sought reimbursement of the $63,822 in workers' compensation benefits paid to Wayne Guinn.

Result

Defense verdict.

Other Information

Fontana Steel filed a cost bill and no motion to tax costs was filed. Fontana received a cost judgment in the amount of $4,226.

Deliberation

six hours

Poll

9-3

Length

six days