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


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

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Case: 16-16969 Date Filed: 09/06/2017 Page: 1 of 2 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 16-16969 Non-Argument Calendar ________________________ D.C.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. 2

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