• January 11, 2013

The denial, this week, of Target’s motion for summary judgment (the two parties to this indemnification litigation) must have really smarted.  So close to a win, but so far.  

Target argued that its cleaning services vendor, All Jersey, agreed to indemnify Target for costly slip’n’falls in its stores caused by All Jersey’s janitorial services (e.g., slippery floors).    All Jersey, on the other hand, argued on several bases that the indemnification agreement it entered into with Target was void under Minnesota law.

U.S. District Court Judge Joan N. Ericksen (D. Minn.) entirely agreed with Target that indemnification clause was valid and enforceable.  But, she held.,

To support its motion for summary judgment [that its employees’ injuries “arose out of the performance of All Jersey’s services”], Target submits declarations containing hearsay and unauthenticated transcripts of telephone interviews, emails, handwritten notes, and medical records… Target’s evidence is either unauthenticated, is hearsay, or contains hearsay, and at the oral argument Target’s counsel did not explain to the Court how the evidence could be presented in an admissible form. Because Target supported its assertions that there is no genuine issue of material fact with evidence that could not be presented in an admissible form, the Court denies Target’s motion for summary judgment.

This is a useful practice pointer that we sometimes lose sight of at the summary judgment stage.  The evidence one submits at the summary judgment stage needs to be admissible at trial.

Presumably Target’s wins on the legal issues will give it quite a bit of leverage to settle this case before trial.  Otherwise, Target will have to do a better job at trial submitting evidence that its employees’ injuries “arose out of the performance of All Jersey’s services” than it was able to do at the summary judgment stage.

Original Post (Sept. 21, 2012):  Target Corporation hired a company, All Jersey Janitorial, to clean some Target stores and, as part of that agreement, All Jersey agreed to indemnify Target for “all claims” that arose from All Jersey’s performance of the contract.

In Target’s summary judgment brief against All Jersey for indemnification for a number of workers compensation claims, filed recently before U.S. District Court Judge Joan N. Ericksen (D. Minn.), one can see the challenge to health care providers, insurers, corporations, contingent fee personal injury lawyers, etc., of the variation and potentially crippling health care costs in the United States.

Target lists several instances in which slippery floors seem to have played a role in Target employee accidents in its memorandum.  The range of damages is anecdotal, of course, and statistically invalid.  Nonetheless, we note the falls resulted in workers’ comp claims from $315,000 to $5,400.

Given the huge range of potential liability, maybe it should come as no surprise that businesses find themselves in disputes.  Vendors may ill-equipped and ill-prepared to value the risk accurately at the front end and therefore unwilling or unable to assume it later.

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