FOLSOM v. MENARD, INC. et al

Filing 387

ORDER granting Crown's 168 Motion for Summary Judgment. Menards request to seek leave of court to name Crown as a non-party is DENIED. Signed by Judge Richard L. Young on 7/19/2011. (TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION

MICHAEL R. FOLSOM,
Plaintiff,

)
)
)
)
vs.
)
)
MENARD, INC., CDI, INC., LAMAR
CONSTRUCTION COMPANY, NORTH )
AMERICAN ROOFING SERVICES, INC., )
FABCON, INC., FABCON, LLC, CROWN )
)
CONSTRUCTION, INC., and GARY
)
PLUMBING SERVICES, INC.,
)
Defendants.
)
)
CDI, INC. and MENARD, INC.
)
Third Party Plaintiffs,
)
)
vs.
)
)
REDDINGER CONSTRUCTORS, INC.,
Third-Party Defendant. )

3:09-cv-094-RLY-WGH

ENTRY ON CROWN CONSTRUCTION, INC.’S MOTION FOR SUMMARY
JUDGMENT
This case arises out of a partial roof collapse during construction at a new Menard,
Inc. retail store (“Menards”) in Princeton, Indiana. Plaintiff alleges that the drains for the
roof were not adequately cut, and that, after a heavy rain, the roof collapsed from the
weight of the water. Plaintiff was below the roof at the time of the collapse and suffered
severe physical injuries.
Crown Construction, Inc. (“Crown”) was the carpentry contractor. All parties agree

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that Crown’s work did not cause or contribute to the loss. Crown therefore moves for
summary judgment on the only claim brought against it – Plaintiff’s claim for negligence.
Plaintiff does not oppose this motion, but CDI, Inc. (“CDI”), the general contractor, and
Menards, do oppose this motion for different reasons.
A.

CDI

CDI does not dispute the facts advanced by Crown in support of its motion for
summary judgment. Rather, CDI asserts that Crown is not entitled to summary judgment
with respect to CDI’s Cross-Claim1 against Crown for additional insured protection to
CDI. More specifically, CDI maintains that pursuant to the Subcontract between CDI and
Crown, Crown was required to obtain insurance protecting CDI “regardless of whether
negligence on the part of Crown contributed to the accident.” (CDI’s Response at 4).
The relevant insurance provision of the Subcontract is found in Section 9.1, and
provides as follows:
Prior to starting work, the Subcontractor shall obtain the required insurance
from a responsible insurer, and shall furnish satisfactory evidence to the
Contractor that the Subcontractor has complied with the requirements of this
Article 9. Similarly, the Contractor shall furnish to the Subcontractor
satisfactory evidence of insurance required of the Contractor by the Contract
Documents. It is agreed that this insurance covers the liability assumed by
the [S]ubcontractor under this contract with CDI, Inc. It is further agreed
that CDI, Inc. and Menard, Inc. will be listed as additional insured [sic] with
respect to any liability arising out of work performed under this contract.
The coverage afforded the additional CDI, Inc. and Menard, Inc. shall be

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The Cross-Claim also alleges that Crown owes indemnity to CDI to the extent the
injuries were caused by the negligence of Crown. (Cross-Claim ¶¶ 2, 3). CDI concedes that it is
not entitled to indemnity given the facts of this case.
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primary insurance for the additional insured.
(Subcontract between CDI and Crown, CDI’s Ex. 1).
The goal in contract construction is to ascertain and enforce the parties’ intent as
expressed in the parties’ contract. Eskew v. Cornett, 744 N.E.2d 954, 957 (Ind. Ct. App.
2001). The unambiguous language of a written contract is a question of law, and is wellsuited for summary disposition. Bicknell Minerals, Inc. v. Tilly, 570 N.E.2d 1307, 1310
(Ind. Ct. App. 1991). Where the language of a written contract is plain and unambiguous,
the language of the contract “is conclusive upon the parties to the contract and upon the
courts.” Id. (citing Peoples Bank & Trust Co. v. Price, 714 N.E.2d 712, 716 (Ind. Ct. App.
1999)). Thus, in resolving the parties’ contract dispute, the court does not look to extrinsic
evidence, but enforces the contract according to its terms. Id. at 1311.
Here, the language of Section 9.1 is plain and unambiguous; it requires Crown to
provide insurance to cover liability arising out of Crown’s work under its Subcontract with
CDI. Contrary to CDI’s assertion, this provision does not require Crown to provide
insurance to CDI for any liability arising out of the work performed by other
subcontractors. Because it is undisputed that Crown’s work at Menard’s did not cause or
contribute to the Plaintiff’s injuries, Crown’s motion for summary judgment must be
GRANTED. In addition, there are no facts to support CDI’s Cross-Claim for additional
insured coverage. However, because Crown did not file a motion for summary judgment
with respect to CDI’s Cross-Claim, the court may not grant summary judgment to Crown
on CDI’s Cross-Claim at this time.
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B.

Menards

Menards does not oppose Crown’s motion for summary judgment per se, but
requests that if the court grants the motion, that Crown remain as a non-party. A
“nonparty” is defined as “a party who caused or contributed to cause the alleged injury,
death or damage to property but who has not been joined in the action as a defendant.”
Ind. Code § 34-6-2-88. It is undisputed that Crown did not cause or contribute to the
Plaintiff’s injuries. Accordingly, Crown’s motion for summary judgment must be
GRANTED. As this is an adjudication on the merits of this case, Menards’ request to
seek leave of court to name Crown as a non-party is DENIED.
C.

Conclusion

There is no evidence in the record to support the inference that Crown caused or
contributed to the Plaintiff’s injuries. Accordingly, Crown’s Motion for Summary
Judgment (Docket # 168) is GRANTED, and Menards’ request for leave to name Crown
as a non-party is DENIED.

SO ORDERED this 19th day of July 2011.

__________________________________

RICHARD L. YOUNG, CHIEF JUDGE
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
United States District Court
Southern District of Indiana
Southern District of Indiana

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Electronic Copies to:
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THE HUNT LAW GROUP LLC
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DAWSON & CLARK, P.C.
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FINE & HATFIELD
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Jeffrey W. Henning
RUDOLPH FINE PORTER & JOHNSON, LLP
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Brian J. Hunt
THE HUNT LAW GROUP LLC
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John J. Kreighbaum
FINE & HATFIELD
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SMITH FISHER MAAS & HOWARD P.C.
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SMITH FISHER MAAS & HOWARD
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THE HUNT LAW GROUP LLC
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