• Burlington Coat Factory of Pa., LLC v. Grace Constr. Mgmt. Co.
  • January 7, 2016 | Author: Kaylie M. Garza
  • Law Firm: Thomas, Thomas & Hafer LLP - Philadelphia Office
  • Pennsylvania Superior Court

    2015 Pa. Super. 227

    Decided: October 29, 2015

    Superior Court holds genuine issue of material fact exists on application of indemnification clause and when faced with two conflicting indemnification provisions, the more restrictive provision applies.


    Burlington Coat Factory Plaintiffs appealed from order granting summary judgment in favor of Defendant Grace Construction. Defendant entered into a contract with one of Plaintiffs’ retail store to perform renovations. Under the contract, Defendant was required to indemnify Burlington Coat Factory’s retail store from any loss, “but only to the extent caused in whole or in part by negligent acts or omissions of the Contractor, Subcontractor, anyone directly or indirectly employed by them or anyone whose acts they may be liable.” Further, attached to the contract as an exhibit was a second indemnification clause which provided that Grace was required to indemnify and hold Burlington Coat Factory’s retail store “harmless from and against all claims . . . for property damage, personal injury, or bodily injury . . . to any and all persons, whether employees of” Grace, Burlington Coat Factory’s retail store or other.

    During the construction, all workers were instructed to have supervision while using the elevator. An employee of a subcontractor of Grace, while without supervision, was injured when the gate of a freight elevator closed on him. The Trial Court granted summary judgment for Grace finding it was not required to indemnify Plaintiffs, as there was no evidence that the employee was negligent and no allegation that Defendant was negligent.


    Reversing the summary judgment, Superior Court found existence of issue of material fact regarding employee’s negligence in operation of the elevator. The Court further found that of the two conflicting indemnification provisions, the more restrictive provision applied.