Sears, Roebuck And Co. v. Hardin Construction Group, Inc, et al

Filing

Opinion issued by court as to Appellant Sears, Roebuck And Co.. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-16969

Date Filed: 09/06/2017

Page: 1 of 2

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-16969
Non-Argument Calendar
________________________
D.C. Docket No. 1:16-cv-00272-KD-B
SEARS, ROEBUCK AND CO.,
Plaintiff - Appellant,
versus
HARDIN CONSTRUCTION GROUP, INC.,
HARDIN CONSTRUCTION COMPANY, LLC,
DPR CONSTRUCTION,
a General Partnership,
DPR CONSTRUCTION, INC.,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(September 6, 2017)
Before WILSON, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:

Case: 16-16969

Date Filed: 09/06/2017

Page: 2 of 2

Sears, Roebuck and Co. appeals the district court’s Rule 12(b)(6) dismissal
of its breach-of-contract claim against Hardin Construction and Hardin’s
successors in interest. Sears alleged in its complaint that in 1996 it contracted
Hardin to install elevators and escalators in a Sears store in Alabama; that a fatal
accident occurred on an escalator at that store in 2014; and that Hardin, under the
terms of the 1996 contract, is required to defend and indemnify Sears but Hardin
has refused to do so. The district court dismissed Sears’s breach-of-contract claim
as barred by Alabama’s seven-year statute of repose for construction contracts.
See Ala. Code § 6-5-221. On appeal, Sears argues that the district court erred
because (1) the indemnity provision in the 1996 contract triggers the exception to
the statute of repose found in Ala. Code § 6-5-227 and (2) the provision completely
waives the statute of repose.
After careful consideration of the record and the parties’ briefs, we affirm
substantially for the reasons set forth in the district court’s order. Sears’s
arguments turn on whether the indemnity provision includes language that either
extends indemnity beyond the statute of repose or waives the statute of repose.
And a plain reading of the provision reveals that it includes no such language. See
Sears, Roebuck and Co. v. Hardin Constr. Grp., Inc., No. 16-00272, slip op. at 9–
10 (S.D. Ala. Oct. 27, 2016).
AFFIRMED.
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