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Fifth District reverses Lopinot’s order granting involuntary dismissal of indemnity contract

By Heather Isringhausen Gvillo | Nov 10, 2015

The Fifth District Appellate Court reversed St. Clair County Circuit Judge Vincent Lopinot’s order granting involuntary dismissal of an auctioneer’s claim for contractual indemnity in a wrongful death suit involving a faulty boom truck.

Justice Judy Cates delivered the Rule 23 decision Oct. 23 in favor of defendant Ritchie Bros Auctioneers Inc., concluding that the indemnity provision in auction-sales documents provides indemnity for the auctioneer

Justice Melissa Chapman and Justice S. Gene Schwarm concurred.

According to the appellate decision, decedent Keven T. Ciborowski suffered fatal injuries on Sept. 21, 2011, while he and his coworkers were constructing a metal tower for a grain elevator in Pinckneyville. During that time, one of the decedent’s coworkers was using a boom truck to hoist a section of a metal tower when safety guards on the boom and crane assembly allegedly failed, causing the load to fall onto the decedent and injure him.

Amy Ciborowski, as administrator of the estate of Keven Ciborowski, claims the boom truck, a 2005 Ford F650 Mechanics Truck, was on loan to the decedent’s employer from Wedekemper’s Inc., which had purchased the truck “as-is” from Ritchie Bros, a commercial auctioneer of vehicles and equipment, for $47,500, at an auction in Las Vegas in November 2009.

Ritchie Bros got the truck from American Asphalt & Grading Company one month before the auction.

Ciborowski filed a wrongful death action in December 2011. Ritchie Bros. then filed claims against Wedekemper’s for contribution and contractual indemnity. The contribution claim was dismissed after Lopinot found that a settlement agreement between Wedekemper’s and Ritchie Bros. was entered in good faith and approved it.

In its claim for contractual indemnity, Ritchie Bros alleged that it was not a business of performing construction work, that it did not possess or retain any ownership interest in the boom truck after the sale to Wedekemper’s and that Wedekemper’s has been the sole owner of the truck since the sale.

Ritchie Bros. also claims that the Bidder’s Registration Agreement and the Listing Catalog contain an express indemnity provision; and that in accordance with the express indemnity provision, Ritchie Bros. was entitled to full indemnity from Wedekemper’s for any and all actions and damages arising from use of the boom truck.

Wedekemper’s then filed a motion for involuntary dismissal of the indemnity claim, arguing that it only applied to incidents that occurred at the auction sale or the auction site, that any ambiguities in the indemnity provision must be construed against Ritchie Bros. and that the indemnity provision is unenforceable because it does not expressly state that Ritchie Bros. would be indemnified for its own negligence.

Lopinot granted Wedekemper’s motion to dismiss, but did provide a basis for his ruling. Ritchie Bros.'s motion to reconsider the ruling was denied.

Ritchie Bros. and the plaintiff agreed to settle the strict liability count and the plaintiff agreed to voluntarily dismiss all other counts against the defendant.

Ritchie Bros. then appealed, arguing that the trial court erred in dismissing its indemnity claim.

Cates wrote that the question here is whether the decedent’s accident is covered within the scope of the indemnity provision.

“Reading the indemnity provision as written, and considering it within the context of the Bidder’s Registration Agreement and Listing Catalog, we find that the provision clearly states that a bidder will agree to indemnify Ritchie Bros. in two types of situations.”

“The first is where an action or loss results from the purchase or use of the item purchased. The second is where the action or loss results from the attendance of and participation by the bidder at the auction site before, during, or after the auction sale,” the appellate decision states.

Therefore, the court found that the incident at issue fits within the scope of the indemnity provision.

Further, the appellate court also found that while the indemnity clause does not afford Ritchie Bros. indemnity for its own negligence, Wedekemper’s “failed to establish the existence of affirmative matters that avoid the legal effect of or defeat Ritchie Bros.'s claim for contractual indemnity.”

Therefore, the trial court erred in granting Wedekemper’s motion for voluntary dismissal, Cates wrote.

The case was reversed and remanded for further proceedings.

St. Clair County Circuit Court case number 11-L-674

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