Sears, Roebuck and Co. v. Hardin Construction Group, Inc.

16-16969 Non-Argument Calendar·Judge: Wilson, Carnes, Pryor·Attorney: Gwen Nolan King, Paul E. White, Sug-arman Rogers Barshak Cohen, Boston, MA, Caroline Thomason . Pryor, Sarah Jean Cross, Carr Allison Howard Oliver & Sisson, Daphne, AL, Joseph H. Driver, Carr Allison, Birmingham, AL for Plaintiff-Appellant, Brian P. McCarthy, Anne Laurie McClurkin, McDowell Knight Roedder & Sledge, LLC, Mobile, AL, for Defendants-Appellees0 citations

Opinions

Case: 16-16969 Date Filed: 09/06/2017 Page: 1 of 2

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 16-16969 Non-Argument Calendar ________________________

D.C. Docket No. 1:16-cv-00272-KD-B

SEARS, ROEBUCK AND CO.,

Plaintiff - Appellant,

versus

HARDIN CONSTRUCTION GROUP, INC., HARDIN CONSTRUCTION COMPANY, LLC, DPR CONSTRUCTION, a General Partnership, DPR CONSTRUCTION, INC.,

Defendants - Appellees.

________________________

Appeal from the United States District Court for the Southern District of Alabama ________________________

(September 6, 2017)

Before WILSON, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM: Case: 16-16969 Date Filed: 09/06/2017 Page: 2 of 2

Sears, Roebuck and Co. appeals the district court’s Rule 12(b)(6) dismissal

of its breach-of-contract claim against Hardin Construction and Hardin’s

successors in interest. Sears alleged in its complaint that in 1996 it contracted

Hardin to install elevators and escalators in a Sears store in Alabama; that a fatal

accident occurred on an escalator at that store in 2014; and that Hardin, under the

terms of the 1996 contract, is required to defend and indemnify Sears but Hardin

has refused to do so. The district court dismissed Sears’s breach-of-contract claim

as barred by Alabama’s seven-year statute of repose for construction contracts.

See Ala. Code § 6-5-221. On appeal, Sears argues that the district court erred

because (1) the indemnity provision in the 1996 contract triggers the exception to

the statute of repose found in Ala. Code § 6-5-227 and (2) the provision completely

waives the statute of repose.

After careful consideration of the record and the parties’ briefs, we affirm

substantially for the reasons set forth in the district court’s order. Sears’s

arguments turn on whether the indemnity provision includes language that either

extends indemnity beyond the statute of repose or waives the statute of repose.

And a plain reading of the provision reveals that it includes no such language. See

Sears, Roebuck and Co. v. Hardin Constr. Grp., Inc., No. 16-00272, slip op. at 9–

10 (S.D. Ala. Oct. 27, 2016).

AFFIRMED.