Tort Law

The cases on this page are from the Virginia Supreme Court and are summarized by Brien Roche. They deal  with the topic of indemnity and the related topic of personal injury. For more information about indemnity issues see the pages on Wikipedia.

Indemnity-Statutes

See Va. Code § 8.2-607 (UCC) dealing with claims where buyer who has been sued, seeks indemnity from seller.

See Va. Code § 11-4.1 indicating that indemnification agreement within construction contract purporting to indemnify contractor for his own negligence is void.

See Va. Code § 46.2-1571 for indemnity of auto dealers by manufacturer.

Indemnity-Cases

2007 Estes Express Lines, Inc. v. Chopper Express, Inc., 273 Va. 358, 641 S.E.2d 476.

Contractual indemnity provision in a vehicle lease that indemnifies the indemnitee from its own negligence is not invalid.

2007 W. R. Hall, Inc. v. Hampton Rds. Sanitation Dist., 273 Va. 350, 641 S.E.2d 472.

Contractual indemnity provision that indemnifies the indemnitee from its own negligence is not invalid.

2003 Pulte Home Corp. v. Parex, Inc., 265 Va. 518, 579 S.E.2d 188.

Homeowner sued Pulte and Parex for defective stucco. Pulte was the home builder and Parex was the manufacturer. Pulte cross-claimed against Parex. Parex moves to dismiss the indemnification claim on the theory that there is no contract between the parties and therefore, no right to indemnification. Trial court properly reached that conclusion. Assertion of equitable indemnification must be based upon a determination of negligence of Parex. As of this point, there was no negligence determination as to Parex and therefore, indemnity claims properly dismissed.

1995 Carr v. The Home Ins. Co., 250 Va. 427, 463 S.E.2d 457.

Home paid for injury to its insured and then sought to recover against tortfeasor. Suit filed beyond two-year limitation. Home amended so as to allege that it was pursuing equitable indemnity claim and therefore cause of action did not arise until payment was made. Equitable indemnification arises when party without personal fault is nevertheless legally liable for damages caused by negligence of another. This was simply a straight subrogation claim and not an indemnification claim and therefore Home was governed by two-year limitation.

1995 Little Creek Inv. Corp. v. Hubbard, 249 Va. 258, 455 S.E.2d 244.

Plaintiff sued owner of shopping center for negligence in regard to allowing muffler to remain on sidewalk. Muffler had been seen by employee of security company hired by owner to protect premises. Contract with security company had indemnification clause in it. Jury issue presented as to whether or not security company was required to indemnify in this instance.

1992 Arkansas Best Freight v. H.H. Moore Trucking, 244 Va. 304, 421 S.E.2d 197.

In this case, determination of insurance coverage is not res judicata as to indemnity issue.

1988 Philip Morris, Inc. v. Emerson, 235 Va. 380, 368 S.E. 268.

Escape of supertoxic chemical injured several plaintiffs. Defendants not entitled to indemnity if guilty of any active negligence.

1986 Appalachian Power Co. v. Sanders, 232 Va. 189, 349 S.E.2d 101.

Private property owner, including common carrier while acting as such, may lawfully contract to indemnify itself against its own negligence without offending public policy. Where right of indemnitee is based upon express contract and no provision of contract provides otherwise, indemnitee may recover reasonable attorney fees and expenses of litigation spent in defense of claim indemnified against.

1983 Kings Mkts. v. Yeatts, 226 Va. 174, 307 S.E.2d 249.

Lessee of store cross-claimed against lessor seeking indemnification under terms of lease. Evidence indicated that lessee had undertaken lessor’s duty to keep area in safe condition since it was in lessee’s economic interest to keep area clear. Lease also provided that lessee was to maintain public liability insurance to provide protection for lessor against public liability arising out of lease agreement or use or ownership of premises. Under these circumstances there was no basis for indemnity.

1983 Walker v. Vanderpool, 225 Va. 266, 302 S.E.2d 669.

Plaintiff contracted with contractor for installation of furnace. Contract provided “owner to carry fire, tornado and other necessary insurance.” Court interpreted that to mean that the homeowner was to take out a policy of insurance covering the liability of both the homeowner and the contractor. The homeowner failed to do so. The court ruled that the homeowner’s failure to take out that policy barred his claim against the contractor for damages to his home arising from the negligent installation of the furnace.

1981 VEPCO v. Wilson, 221 Va. 979, 277 S.E.2d 149.

Distinguishing feature of indemnity is that it must necessarily grow out of contract relationship.

1979 Southern Ry. v. Arlen Realty, 220 Va. 291, 257 S.E.2d 841.

Where there is express indemnity provision, attorney fees and expenses are recoverable from indemnitor unless contract provides to contrary. That judgment is entered in favor of third party against indemnitee is not conclusive on indemnitor unless notice and opportunity to defend is given.

1978 Richardson-Wayland Elec. Corp. v. VEPCO, 219 Va. 198, 247 S.E.2d 465.

VEPCO and its contractor damaged private home while repairing electrical lines. Parties had contract whereby contractor was to indemnify VEPCO. Clause valid if VEPCO acting in private capacity. VEPCO was acting in public capacity (supplying electrical services to consumer); therefore, clause was invalid.

1977 Allied Prod., Inc. v. Duesterdick, 217 Va. 763, 232 S.E.2d 774.

No recovery on indemnity obligation where there has been no actual loss or damage.

1974 Philip Morris, Inc. v. Old Dominion Freight Line, 215 Va. 169, 207 S.E.2d 851.

Theft of goods from common carrier. Cross-claim for full indemnity sounds in contract. There was no evidence of duty.

1971 Goldman Paper Co. v. Richmond, F. & P.R.R., 212 Va. 293, 183 S.E.2d 728.

Lease contained indemnification clause where lessee was to indemnify lessor for damage sustained as result of lessee’s use of premises. Fire of unknown origin damaged building. Since fire not result of lessee’s use of premises, lessor not entitled to indemnification.

1967 Richmond, F. & P.R.R. v. Hughes-Keegan, Inc., 207 Va. 765, 152 S.E.2d 28.

Indemnity provision in contract imposed liability on defendant for acts of its agents in performing work pursuant to contract. Thus, liability under provision did not depend upon whether or not defendant or its agents committed negligent act.

1964 City of Richmond v. Branch, 205 Va. 424, 137 S.E.2d 882.

No basis for indemnity since such only arose if defendant suffered actual loss as result of plaintiff’s recovery against defendant.

1963 Lackey v. Brooks, 204 Va. 428, 132 S.E.2d 461.

Terms of lease were interpreted as being covenant not to sue rather than indemnity agreement.

1962 Magann Corp. v. Virginia-Carolina Elec. Works, 203 Va. 259, 123 S.E.2d 377.

Subcontractor liable to general contractor under indemnity contract for damage done to work by third party.

1961 Seaboard R.R. v. Richmond-Petersburg Tpk. Auth., 202 Va. 1029, 121 S.E.2d 499.

Indemnity agreement to be interpreted according to normal rules of contract construction.

1955 Wiley N. Jackson Co. v. City of Norfolk, 197 Va. 62, 87 S.E.2d 781.

Indemnity contract between parties to protect against negligence. Contribution not allowed against party to be held harmless.

1954 Kitchin v. Gary Steel Corp., 196 Va. 259, 83 S.E.2d 348.

Reference made to apparent indemnity clause in contract.

1951 Laburnum Corp. v. Richmond, 192 Va. 727, 66 S.E.2d 474.

If party is obligated to defend against act of another, against whom he has remedy over, and defends solely and exclusively act of such other party, and is compelled to defend no misfeasance of his own, he may request such party to defend it. This does not apply where one is defending his own wrong although another may be responsible to him.

1950 Maryland Cas. Co. v. Aetna Cas. & Sur. Co., 191 Va. 225, 60 S.E.2d 876.

Person who without personal fault, has become subject to tort liability for unauthorized and wrongful conduct of another, is entitled to indemnity from other for expenditures properly made in discharge of such liability.

1947 Sykes v. Stone & Webster Eng’g Corp., 186 Va. 116, 41 S.E.2d 469.

One who is primarily liable cannot receive indemnification from one secondarily liable.