00-0916 Boldt Construction Co., et al. v. N.J. Schaub & Sons, et al.

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A subcontractor agreement between Oscar J. Boldt Construction Co. (Boldt), the general contractor, and N.J. Schaub & Sons Inc. (Schaub), the subcontractor, included an indemnification provision that required Schaub to indemnify Boldt for damages or liability arising out of Schaub’s work under the contract. Schaub appeals from a judgment ordering it to indemnify Boldt for 67% of a settlement that Boldt had previously paid to Jeffrey Schaub, a Schaub employee, who was injured in an accident at the construction site. The judgment also directed Schaub to indemnify Boldt for 67% of Boldt’s attorney’s fees. The judgment was based on a jury’s determination that Schaub was 67% responsible for the accident.

The principal issue on appeal is whether the trial court erred by barring any consideration of Jeffrey’s alleged contributory negligence at the jury trial, thereby limiting the issues to the negligence of Boldt and Schaub. We hold that the trial court properly limited the issues because: (1) Boldt was potentially liable to Jeffrey; (2) Boldt had negotiated a reasonable settlement with Jeffrey on that basis; and (3) Boldt had previously tendered the defense of Jeffrey’s claim to Schaub and had invited Schaub to join the settlement negotiations.

Schaub raises two other issues. It claims that the trial court erred by refusing to instruct the jury on the element of “control” under the safe-place law and by awarding attorney’s fees to Boldt. We hold that the trial court did not err by declining to instruct the jury on the “control” element under the safe-place law. However, we conclude that the trial court erred by awarding attorney’s fees.

We affirm in part and reverse in part.

Not recommended for publication in the official reports.

Dist II, Waukesha County, Foster, J., Nettesheim, P.J.

Attorneys:

For Appellant: Jeffrey J. Leavell, Racine; Christine M. Genthner, Racine

For Respondent: Edward A. Hannan, Milwaukee