Mullins et al v. Con-Way Central Express, Inc. et al

Filing 53

OPINION AND ORDER: Con-Way's Motion to Dismiss Cross-Claim (DE 35) is DENIED AS MOOT. The Amended Motion to Dismiss Cross-Claim (DE 36) is DENIED. Signed by Judge Rudy Lozano on 12/18/17. (ksp)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
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CHRISTOPHER MULLINS and
JENNIFER MULLINS,
Plaintiffs,
vs.
CON-WAY CENTRAL EXPRESS, INC.
and LB PARTNERS,
Defendants.

LB PARTNERS,
Cross-Claimant,
vs.
CON-WAY CENTRAL EXPRESS, INC.
Cross-Defendant.

NO. 2:17–CV-00078

OPINION AND ORDER
This matter is before the Court on the Motion to Dismiss
Cross-Claim by XPO Logistics Freight, Inc., formerly d/b/a ConWay Central Express, Inc. (“Con-Way”) filed on June 30, 2017 (DE
#35), and the Amended Motion to Dismiss Crossclaim filed by ConWay on June 30, 2017 (DE #36).

For the reasons set forth below,

the Motion to Dismiss Cross-Claim is DENIED AS MOOT (DE #35).
Amended Motion to Dismiss Crossclaim is DENIED (DE #36).

1

The

BACKGROUND
Plaintiffs filed a lawsuit against defendants Con-Way and LB
Partners alleging that Christopher Mullins (“Mullins”) was injured
as a result of an accident that occurred on the premises owned by
LB Partners and occupied by Con-Way.
claim

against

Con-Way,

seeking

LB Partners filed a cross

indemnification

based

upon

an

indemnification provision contained in the Lease Agreement between
Con-Way and LB Partners.

Con-Way now moves to dismiss the cross

claim.

DISCUSSION
As an initial matter, the Court notes that after Con-Way filed
its motion to dismiss, it filed an amended motion to dismiss in
which it stated that the motion to dismiss was mistakenly filed
and was withdrawn and superseded by the amended motion.
at 1 n.1.)

(DE #36

The Court therefore denies as moot the motion to

dismiss (DE #35).
Standard
Federal Rule of Civil Procedure 12(b)(6) allows a complaint
to be dismissed if it fails to “state a claim upon which relief
can be granted.”

Fed. R. Civ. P. 12(b)(6).

In order to survive

a Rule 12(b)(6) motion, the complaint “must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face’.”

Ashcroft v. Iqbal, 556 U.S. 662, 678,
2

129 S. Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L.Ed.2d
929 (2007)).

All well-pleaded facts must be accepted as true, and

all reasonable inferences from those facts must be resolved in the
plaintiff's favor.
Cir. 2008).

Pugh v. Tribune Co., 521 F.3d 686, 692 (7th

However, pleadings consisting of no more than mere

conclusions are not entitled to the assumption of truth.
556 U.S. at 678-79.

Iqbal,

This includes legal conclusions couched as

factual allegations, as well as “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements.”

Id. at 678 (citing Twombly, 550 U.S. at 555).

When reviewing a motion to dismiss, a court may examine
“documents attached to the complaint, documents that are critical
to the complaint and referred to in it, and information that is
subject to proper judicial notice,” without converting the motion
to one for summary judgment.

Geinosky v. City of Chicago, 675

F.3d 743, 745, n.1 (7th Cir. 2012) (collecting cases).

Here, LB

Partners’ Cross Claim refers to and attaches the Lease Agreement,
and Con-Way attached the Lease Agreement to its amended motion to
dismiss.

Therefore, the Court will consider the Lease Agreement

without converting the amended motion to dismiss into a motion for
summary judgment.

3

Facts
Plaintiffs’

Amended

Complaint

for

Damages

(“Complaint”)

alleges that Mullins was injured as a result of an accident that
occurred on the premises owned by LB Partners and occupied by ConWay in Gary, Indiana.

(DE #28, ¶¶2-4.)

The Complaint alleges

that on February 5, 2015, Mullins “was an invitee on the premises
of the Defendants . . . when he slipped and fell on ice that had
been allowed to accumulate on the parking lot by the defendants.”
(Id., ¶4.)

It further alleges that Mullins’ “injuries and damages

were the responsible result of the carelessness and negligence of
agents and/or employees of the Defendants in failing to properly
inspect and maintain the property, failing to maintain a hazard
free and safe environment and failing to warn of the danger.”
(Id., ¶7.)
LB Partners filed a Cross Claim for Indemnity (“Cross Claim”)
against Con-Way based upon the terms of the Lease Agreement.
#34.)

(DE

LB Partners leased the subject premises to Con-Way pursuant

to a Lease Agreement dated July 3, 1989.

(Id., ¶2.)

The Third

Amendment to the Lease Agreement dated September 5, 2012, extended
the original Lease Agreement for an additional three-year period
expiring on November 30, 2015.

(Id.)

Thus, the Lease Agreement

was in effect on February 5, 2015, when the alleged incident
occurred.

(Id.)

The Lease Agreement provides in pertinent part:
4

Tenant [Con-Way] shall indemnify and hold Landlord [LB
Partners] harmless against any and all claims and
demands arising from the negligence of the Tenant [ConWay], it [sic] officers, agents, invitees and/or
employees, as well as those arising from Tenant's [ConWay’s] failure to comply with any covenant of this Lease
Agreement on its part to be performed and shall at its
own expense defend the Landlord [LB Partners] against
any and all suits or actions arising out of such
negligence, actual or alleged, and all appeals therefrom
and shall satisfy and discharge any judgment which may
be awarded against Landlord [LB Partners] in any such
suit or action.
Likewise, Landlord [LB Partners] shall indemnify and
hold Tenant [Con-Way] harmless against any and all
claims and demands arising from the negligence of the
Landlord [LB Partners], its officers, agents, invitee
and/or employees, as well as those arising from
Landlord's [LB Partners’] failure to comply with any
covenant of this Lease Agreement on its part to be
performed, and shall at its own expense defend the Tenant
[Con-Way] against any and all suits or actions arising
out of such negligence, actual or alleged, and all
appeals therefrom and shall satisfy and discharge any
judgment which may be awarded against Tenant [Con-Way]
in any such suit or action.
(DE #34-1 at 6.)

The Lease also provides:

12. LANDLORD’S REPAIRS AND MAINTENANCE. Landlord [LB
Partners] at its cost shall maintain, in good condition,
the structural parts of the building and other
improvements that are part of the leased premises which
structural parts include only the foundations, bearing
and exterior walls, subflooring and roof.
13. TENANT’S REPAIR AND MAINTENANCE. Except as provided
in paragraph 12 above, Tenant [Con-Way] at its cost shall
maintain, in good condition all portions of the leased
premises. . . .
(Id. at 5.)
The Cross Claim alleges that pursuant to these provisions of
the Lease Agreement, Con-Way has a duty to defend and indemnify LB
5

Partners for Plaintiffs’ claim.

It also asserts that LB Partners

will be damaged if Con-Way fails to reimburse it for defense and
indemnity

costs

incurred

in

connection

with

the

defense

of

Plaintiffs’ claims.

Motion to Dismiss
Con-Way relies upon Hagerman Construction Corporation v. Long
Electric Company, 741 N.E.2d 390 (Ind. Ct. App. 2000), to argue
that the Cross Claim should be dismissed. In Hagerman, the parties
agreed that if Hagerman was solely responsible for a third party’s
injuries, there should be no indemnification by Long.

Id. at 392.

The issue was whether, pursuant to an indemnification clause in
the parties’ contract, Long was required to indemnify Hagerman for
Hagerman’s own negligence if Long was also at fault.

Id.

Hagerman

provides:
Absent prohibitive legislation, no public policy
prevents parties from contracting as they desire. Moore
Heating & Plumbing, Inc. v. Huber, Hunt & Nichols, 583
N.E.2d 142, 145 (Ind. Ct. App. 1991). For instance, in
Indiana a party may contract to indemnify another for
the other's own negligence. However, this may only be
done if the party knowingly and willingly agrees to such
indemnification.
Id.
Such provisions are strictly
construed
and
will
not
be
held
to
provide
indemnification unless it is so stated in clear and
unequivocal terms. Id. We disfavor indemnity clauses
because we are mindful that to obligate one party to pay
for the negligence of another is a harsh burden that a
party would not lightly accept. Id. 

This Court has followed a two-step analysis to determine
whether a party has knowingly and willingly accepted
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this burden.
First, the indemnification clause must
expressly state in clear and unequivocal terms that
negligence is an area of application where the
indemnitor (in this case, Long) has agreed to indemnify
the indemnitee (in this case, Hagerman). Id. at 146.
The second step determines to whom the indemnification
clause applies. Again, in clear and unequivocal terms,
the clause must state that it applies to indemnification
of the indemnitee (in this case, Hagerman) by the
indemnitor (in this case, Long) for the indemnitee's own
negligence. Id.
Id. at 392.
Agreement’s

Here, Con-Way acknowledges that under the Lease
indemnification

provision,

“where

the

party’s

liability is based solely on a theory of vicarious liability, there
is a duty to indemnify to that limited extent.”

(DE #37 at 3.)

Con-Way argues that the Cross Claim should be dismissed because LB
Partners cannot identify clear and unequivocal terms in the Lease
Agreement that would indicate that Con-Way knowingly and willingly
agreed to indemnify LB Partners for its own negligence.
LB

Partners

does

not

deny

that

Con-Way

has

no

duty

to

indemnify LB Partners for its own negligence under the Lease
Agreement.

Rather, LB Partners maintains that its liability is

premised on Con-Way’s allegedly negligent failure to properly
maintain the parking lot where Mullins fell.

(See DE #28, ¶4

(Plaintiffs allege that Mullins was injured “when he slipped and
fell on the ice that had been allowed to accumulate on the parking
lot by the defendants”).)

The Lease Agreement provides that Con-

Way “shall maintain, in good condition all portions of the leased
premises” except the foundations, bearing and exterior walls,
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subflooring and roof.

(DE #34-1, at 5.)

The Cross Claim asserts

that “[p]ursuant to the Lease Agreement, Con-Way had the sole and
exclusive duty to maintain the parking lot.”

(DE #35, ¶5.)

Con-Way maintains that while a landlord may be liable for its
own negligence, it is not vicariously liable for areas under the
control of the tenant.

See Olds v. Noel, 857 N.E.2d 1041, 1044

(Ind. Ct. App. 2006) (“As a general rule, . . . a landlord who
gives a tenant full control and possession of the leased property
will not be liable for personal injuries sustained by the tenant
or other persons lawfully upon the leased property.”).

Con-Way

insists that the Cross Claim must be dismissed because “LB Partners
may only be liable for its own negligence; therefore, Con-Way has
no duty to indemnify LB Partners (for its own negligence).”
#39 at 3.)

(DE

As noted above, there is no dispute that the Lease

Agreement does not provide that Con-Way indemnify or defend LB
Partners for LB Partners’ own negligence.

But the Lease Agreement

does provide that Con-Way shall indemnify and defend LB Partners
against

actions

arising

out

of

Con-Way’s

actual

or

alleged

negligence.
Accepting the Cross Claim’s allegations as true and drawing
all reasonable inferences in favor of LB Partners, the Court finds
the Cross Claim sufficiently alleges that:
(1) LB Partners and Con-Way entered into the Lease Agreement
which included an indemnification provision;
8

(2) the Lease Agreement provides that Con-Way shall indemnify
LB Partners for claims and demands made arising from ConWay's negligence, and defend LB Partners against actions
arising out of such negligence, actual or alleged;
(3) the Lease Agreement provides that Con-Way shall maintain
in good condition all portions of the leased premises, with
exception of the foundations, bearing and exterior walls,
subflooring and roof;
(4) the Complaint alleges that Mullins was injured as a result
of ice that had been allowed to accumulate on the leased
premise’s parking lot;
(5) Con-Way had the sole and exclusive duty to maintain the
parking lot where Mullins allegedly fell; and
(6) pursuant to the Lease Agreement, Con-Way has a duty to
defend and indemnify LB Partners for Plaintiffs’ claims.
Accepting these allegations as true and drawing all reasonable
inferences in LB Partners’ favor, the underlying Complaint appears
to be an action arising out of Con-Way’s alleged negligence, which
is the type of action Con-Way agreed to defend LB Partners against
under the Lease Agreement.

The Court therefore denies Con-Way’s

amended motion to dismiss.

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CONCLUSION
For the reasons set forth above, Con-Way’s Motion to Dismiss
Cross-Claim is DENIED AS MOOT (DE #35).

The Amended Motion to

Dismiss Crossclaim is DENIED (DE #36).

DATED:

December 18, 2017

/s/ RUDY LOZANO, Judge
United States District Court

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