United States District Court, D. Kansas
GREAT-WEST FINANCIAL RETIRMENT PLAN SERVICES, LLC, Third-Party Plaintiff,
COMPUTER CONSULTING SERVICES OF AMERICA, INC. d/b/a CLIENTSOLV TECHNOLOGIES, Third-Party Defendant.
MEMORANDUM AND ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE
matter comes before the court on third-party defendant
Computer Consulting Services of America, Inc. d/b/a
ClientSolv Technologies' Motion for Judgment on Pleadings
(Doc. 75) and third-party plaintiff Great-West Financial
Retirement Plan Services, LLC's Motion for Judgment on
the Pleadings (Doc. 78). In dispute is whether third-party
defendant is obligated under its agreement with third-party
plaintiff to indemnify third-party plaintiff for its cost of
defending this action. For the reasons below, the court
grants third-party defendant's motion and denies
third-party plaintiff's motion.
2006, third-party plaintiff entered into a contract with
Corporate Employment Resources, Inc.
(“CoreStaff”) in which CoreStaff agreed to
provide temporary workers to third-party plaintiff. On June
28, 2010, CoreStaff and third-party defendant entered into an
agreement under which third-party defendant agreed it would
supply temporary workers to third-party plaintiff. In October
2015, third-party defendant placed plaintiff Tom Pattison
(“Pattison”) as a temporary employee with
third-party plaintiff. Pattison and third-party defendant had
an employment agreement which contained an arbitration
provision. On March 2016, CoreStaff and third-party defendant
entered into another contractual agreement (“the
agreement”) in which CoreStaff subcontracted its
temporary services provision to third-party defendant.
Third-party plaintiff is an express third-party beneficiary
to the agreement.
plaintiff terminated Pattison's temporary employment on
August 25, 2016. Pattison then filed a petition against
third-party plaintiff in Johnson County District Court on
February 6, 2017, alleging statutory and common law claims
arising from his termination. The case was removed to this
court on March 3, 2017, and Pattison's claims were
dismissed on July 10, 2018.
response to Pattison's petition, third-party plaintiff
requested indemnification from third-party defendant pursuant
to the indemnification provision in the agreement. Despite
the timely notifications, third-party defendant rejected the
demand for indemnification claiming that Pattison's
claims arose from the “intentional misconduct” of
third-party plaintiff-excluding them from the indemnification
provision set forth in the agreement. Third-party plaintiff
renewed its demand for indemnification to third-party
defendant pursuant to the agreement. Third-party defendant
again rejected this demand on May 23, 2017. On July 7, 2017,
third-party plaintiff filed its third-party complaint
alleging breach of contract for refusing to indemnify it in
the action filed by Pattison. On September 21, 2018,
third-party defendant filed a third-party motion for judgment
on pleadings arguing that the lawsuit arose out of
“intentional misconduct” by third-party
plaintiff, rendering the indemnification clause
unenforceable. On October 12, 2018, third-party plaintiff
filed an opposing motion for judgment on the pleadings,
claiming that third-party defendant breached their
contractual obligations. Third-party plaintiff requests
relief in the form of fees, including costs for defense in
the suit with Pattison, attorney's fees, and court costs.
considering a Rule 12(c) motion for judgment on the
pleadings, the court evaluates the motion under the same
standard as a Rule 12(b)(6) motion to dismiss. Turner v.
City of Tulsa, 525 Fed.Appx. 771, 772 (10th Cir. 2013).
Under Rule 12(b)(6), a court may dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Rule 8(a)(2) states that a pleading must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” To
withstand a motion to dismiss under 12(b)(6), a complaint
must contain “enough allegations of fact, taken as
true, ‘to state a claim to relief that is plausible on
its face.'” Khalik v. United Air Lines,
671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). A claim
is plausible when “the pleaded factual content allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009). When the complaint
contains well-pleaded factual allegations, a court should
“assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.”
well-pleaded facts, as distinguished from conclusory
allegations, must be taken as true.” Swanson v.
Bixler, 750 F.2d 810, 813 (10th Cir. 1984); see also
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1951 (2009). The
court construes any reasonable inferences from these facts in
favor of the plaintiff. Tal v. Hogan, 453 F.3d 1244,
1252 (10th Cir. 2006). The issue in reviewing the sufficiency
of a complaint is not whether the plaintiff will prevail, but
whether the plaintiff is entitled to offer evidence to
support his claims. Scheuer v. Rhodes, 416 U.S. 232,
236 (1974), overruled on other grounds by Harlow v.
Fitzgerald, 457 U.S. 800 (1982).
issue in the parties' competing motions for judgment on
the pleadings is whether third-party defendant is obligated
under its agreement with third-party plaintiff to indemnify
third-party plaintiff for the costs of defending this action.
The relevant provision in the agreement states:
[Third-party defendant] shall defend, indemnify and hold
harmless [third-party plaintiff] and CORESTAFF from any and
all claims, damages, suits, judgments, fines, settlements, or
liabilities of any kind either CORESTAFF or [third-party
plaintiff] may incur which are arising from or related to: .
. . (b) any claim or suit asserted by any employee of
[third-party defendant] against [third-party plaintiff] or
CORESTAFF (except where such suit arises out of the
intentional misconduct of CORESTAFF or [third-party
plaintiff] . . . .
(Doc. 77-1, at 13.) The term “intentional
misconduct” is not defined within the agreement. To
resolve the dispute, the court must determine whether
third-party plaintiff's alleged actions against Pattison
were intentional misconduct that fall outside the scope of
the indemnification provision.
undisputed that the agreement contains a choice of law
provision that provides that the agreement is to be
interpreted and enforced under Colorado law. “Under
Colorado law, indemnity provisions are governed generally by
the same rules of construction that govern other contract
provisions.” Five Rivers Ranch Cattle Feeding LLC
v. KLA Env't Srvs, Inc., No. 08-2185-EFM, 2010 WL
2609426, at *4 (D. Kan, June 25, 2010) (citing Mid
Century Ins. Co. v. Gates Rubber Co., 43 P.3d 737, 739
(Colo. Ct. App. 2002)). Indemnity provisions, therefore,
“are generally construed to effectuate the parties'
intentions.” Id. To ascertain the ...