The opinion of the court was delivered by: CAROL E. HECKMAN
This case has been referred to the undersigned by Hon. Richard J. Arcara for all pretrial and dispositive matters. Defendants American Protective Services, Inc. ("APS") and Thomas R. Moss have moved for summary judgment on their claims for defense and indemnification against defendant Occidental Chemical Corp. ("Occidental"). Occidental has cross-moved to dismiss the defense and indemnification claims. For the following reasons, the summary judgment motion by APS and Moss should be denied, and Occidental's cross-motion to dismiss should be granted.
This is a diversity personal injury action in which plaintiff Warren Earl Meek alleges that, on August 2, 1991, he was struck in the head by a rock while driving his truck through a picket line at Occidental's "Durez" facility in Niagara Falls, New York ("Durez-Niagara"). APS provided security services at the Durez-Niagara plant, and defendant Thomas R. Moss was employed by APS as a security guard at the Durez-Niagara plant, at the time of the alleged incident.
Plaintiff (and his wife Locke Meek) filed this action on October 18, 1991 against several defendants, including APS and Moss. Specifically with regard to the instant motion, the amended complaint (filed on October 13, 1992) alleges that APS and Moss negligently allowed Meek to proceed in his truck through the Durez-Niagara picket line without a police escort, which proximately caused or contributed to plaintiff's injuries (Item 52, PP 85-90). It also alleges that Occidental was negligent in that it failed to take all precautions necessary to ensure plaintiff's safety (id., PP 91-95).
By letter dated November 14, 1991, counsel for APS made a formal demand that Occidental assume defense and indemnification obligations for this lawsuit, as set forth in a contract for services between APS and Occidental (Item 290, Ex. C). Subsequently, on November 25, 1991, APS and Moss brought a third-party action against Occidental seeking, among other things, contractual defense and indemnification, and attached a copy of a contract dated March 1, 1991, as an exhibit to the third-party complaint (id., Exs. E, E(3)).
In its answer to the third-party complaint dated December 17, 1991, Occidental asserted the affirmative defense that the alleged contract relied upon by APS "was neither approved, accepted nor executed by Occidental" (id., Ex. F, P 13). By letter dated March 12, 1992, counsel for Occidental formally notified APS that Occidental "decline[d] to undertake the defense or indemnify" APS with regard to this lawsuit (id., Ex. D).
Specifically, the indemnification clause at issue provides:
6. Contrary to any other provisions provided for herein, the following will apply when coverage is provided during labor disputes and/or strikes of [Occidental]:
(a) [Occidental] shall indemnify and hold harmless APS, its affiliates, agents and employees from and against any loss, damage, injury, liability, claim or lien (including the payment of all damages, expenses, costs and attorneys' fees) for damage to property or injury to persons caused by employees of [Occidental] or other third parties.
Occidental cross-moves for summary judgment dismissing the defense and indemnification claims. Occidental contends that it never entered into a separate contract for security services at the Durez-Niagara plant, and that it cannot be bound by the terms of the Rainbow Center contract. According to Occidental, each plant has its own purchasing agent who is independently responsible for obtaining security services at that particular facility. When Occidental hired APS in February, 1991 to provide security at Durez-Niagara, purchasing manager Douglas Henderson issued a purchase order containing Occidental's standard indemnification provision requiring APS to agree to defend and indemnify Occidental in the event of personal injury arising out of the work performed by APS (see Item 297, Exs. B, M).
Occidental claims that APS never executed this purchase order, but instead submitted its own form contract (the March 1, 1991 contract) to Occidental, which also was never executed. According to Occidental, the only written agreements ever signed pertaining to the provision of security by APS at Durez-Niagara were six separate purchase orders issued after the strike (id., Exs. P-U). Thus, Occidental contends that if any contractual defense or indemnification obligations exist, they exist on behalf of APS in favor of Occidental under the purchase order provisions.