Appalachian Aggregates, LLC, dba Kelly Mountain Quarry v. Roger Wiss, Hardman Trucking, Inc., Charles W. Beckner, and Flanigan Field Services, LLC ( 2022 )

FILED
December 6, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
Appalachian Aggregates, LLC, dba
Kelly Mountain Quarry,
Defendant and Third-Party
Plaintiff Below, Petitioner,
vs.) No. 21-0869 (Kanawha County No. 20-C-112)
Roger Wiss, Hardman Trucking, Inc.,
Charles W. Beckner, and
Flanigan Field Services, LLC,
Defendants Below, Respondents
MEMORANDUM DECISION
Petitioner Appalachian Aggregates, LLC, dba “Kelly Mountain Quarry” (“Appalachian”)
appeals the October 13, 2021, order of the Circuit Court of Kanawha County that granted summary
judgment to respondent Hardman Trucking, Inc. (“Hardman”), and dismissed petitioner’s claim
for express indemnification from respondent.1 Upon our review, we determine that oral argument
is unnecessary and that a memorandum decision affirming the circuit court’s order is appropriate.
See W. Va. R. App. Proc. 21.
Petitioner is engaged in the business of road construction and other similar businesses.
Respondent is in the business of trucking and hauling, and supplies motor trucks for hire. On March
27, 2019, Appalachian and Hardman entered into a “Trucking Agreement” wherein Hardman
agreed “to haul for [Appalachian] such materials, supplies, equipment, etc. as shall be requested
by [Appalachian during 2019] on public and private roads within . . . West Virginia upon the
request of [Appalachian].” The Trucking Agreement contained an indemnification provision
which provided that:
[Appalachian] will not be liable for any loss or casualty incurred or caused
by [Hardman]. [Hardman] shall hold [Appalachian] harmless from any and all
liability, costs, damages, attorney fees and expenses from any claims or causes of
action whatsoever arising directly or indirectly because of any action or failure to
act by [Hardman], his/its representatives, employees and/or subcontractors.
1
Petitioner is represented by Norman T. Daniels, Jr., and Thomas S. Sweeney. Respondent
is represented by William R. Slicer and Michael D. Dunham.
1
Appalachian acknowledged in discovery that the indemnification provision applied only when
Hardman was hauling material for Appalachian under the Trucking Agreement.2
On October 2, 2019, Hardman purchased “gabion stone” for one of Hardman’s own
customers from Appalachian. Appalachian loaded the stone onto two trucks employed by
Hardman. Later that day, as the trucks were traveling on a public highway, a rock fell from one of
the Hardman-employed trucks and smashed through the windshield of a car operated by Carol Sue
Huffman, who was the plaintiff below. Huffman was struck in the head and severely injured.
Huffman sued Appalachian and others alleging that Appalachian had “dangerously and improperly
loaded” the trucks with stone and allowed them to be driven on public roadways with “the cargo
in a dangerous and unsecured state.”3 Thereafter, Appalachian filed a third-party complaint against
Hardman 4 alleging that Hardman was negligent because it failed to tarp the truckloads of stone.
Appalachian also demanded express indemnification from Hardman under the Trucking
Agreement. Huffman later amended her complaint to add Hardman as a defendant to her lawsuit.
Following discovery, Huffman settled with Hardman 5 and Appalachian. Appalachian conceded
that the settlements extinguished any claims it might have had for contribution or implied
indemnification from the other defendants, including Hardman. However, Appalachian insisted
that it was entitled to express indemnification from Hardman under the Trucking Agreement.
Hardman filed a motion for summary judgment asserting that Appalachian’s express
indemnity claim must fail as a matter of law because the October 2, 2019, incident was outside the
scope of the 2019 Trucking Agreement. Hardman argued that express indemnity arises only from
a written contract and that the indemnification clause in the Trucking Agreement applied only to
operations connected to the performance of the Trucking Agreement and only when Hardman was
hauling “materials, supplies, equipment, etc. as shall be requested by” Appalachian. Hardman
pointed out that Appalachian admitted in discovery that the indemnification clause “does not
impose an indemnity obligation unless Hardman is hauling for Appalachian . . . pursuant to the
contract”; “Hardman was hauling stone for its own customer on October 2, 2019”; and, when the
2
In request for admission No. 8, Hardman asked Appalachian to “[a]dmit that Paragraph
10 ‘Indemnification’ in the contract . . . does not impose an indemnity obligation unless Hardman
is hauling for Appalachian . . . pursuant to the contract[.]” Appalachian’s response was “[a]dmit
with the caveat that Defendant Appalachian is an additional insured under the policy of insurance
issued to Hardman Trucking and is entitled to insurance coverage[.]”
3
The plaintiff did not initially sue Hardman, despite one of the two trucks being owned by
Hardman. The other truck used to haul the gabion stone, and retained by Hardman, was owned by
Flanigan Field Services, LLC (“Flanigan”). The plaintiff alleged that the stone that injured her fell
from the Flanigan truck. Therefore, in addition to Appalachian, the plaintiff sued Flanigan and the
driver of the Flanigan truck, Charles W. Beckner.
4
Appalachian also filed the third-party complaint against the driver of Hardman’s truck,
Roger Wiss.
5
The plaintiff’s settlement with Hardman encompassed all the parties working on behalf
of Hardman: Flanigan Field Services; Beckner; and Wiss.
2
plaintiff was injured, Hardman was not hauling stone “in connection with the performance of [the
T]rucking [A]greement.”
On October 13, 2021, the circuit court granted summary judgment to Hardman and
dismissed Appalachian’s express indemnity claim. The court found no disputed question of
material fact that the Trucking Agreement applied only when Hardman was hauling materials for
Appalachian, and that on October 2, 2019, Hardman was not hauling materials for Appalachian. 6
Thus, Appalachian was not entitled to indemnification under the Trucking Agreement.
Appalachian now appeals. We review the circuit court’s summary judgment order de novo
to assess whether the record presented any genuine issues of material fact. Syl. Pt. 1, Painter v.
Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). Appalachian argues that the circuit court erred
because its agreement with Hardman required Hardman to indemnify Appalachian for liability due
to any action or failure to act by Hardman or those acting on its behalf. We disagree and find that
Appalachian’s argument is not supported by the record. Appalachian admitted below that (1) the
indemnification provision in the Trucking Agreement “does not impose an indemnity obligation
[upon Hardman] unless Hardman is hauling for Appalachian,” and (2) the gabion stone being
hauled by Hardman at the time of the accident was not done at Appalachian’s request or for its
benefit but solely for Hardman’s own customer. Hence, on this record, Appalachian is not entitled
to express indemnification. To compel Hardman to indemnify Appalachian from all liability would
yield a result not intended by the parties’ agreement. Accordingly, we find no error.
Affirmed.
ISSUED: December 6, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
6
The circuit court also found that any other interpretation of the agreement would be
unconscionable to Hardman. While Appalachian challenges this finding, we need not address it.
“We have consistently held that ‘[t]his Court may, on appeal, affirm the judgment of the lower
court when it appears that such judgment is correct on any legal ground disclosed by the record,
regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment.’
Syl. Pt. 3, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965).” Old Republic Ins. Co. v.
O’Neal, 237 W. Va. 512, 525, 788 S.E.2d 40, 53 (2016). In fact, the Court “may affirm a circuit
court’s decision on any adequate ground even if it is other than the one on which the circuit court
actually relied.” Williams v. Precision Coil, Inc., 194 W. Va. 52, 59 n.8, 459 S.E.2d 329, 336 n.8
(1995).
3