J. H. Pomeroy & Co. v. Soulé Steel Co.

BRAY, J.

Appellant applied to the superior court for an order directing arbitration, and appeals from the order denying and dismissing the petition.

Question Presented

Did the “hold harmless’’ clause of the arbitration agreement purport to cover an action by an employee of respondent against appellant for appellant’s negligence?

Facts

April 11, 1952, appellant, a Washington corporation authorized to do business in this state, entered into a written contract with respondent, a California corporation, for the construction by the latter of certain iron work at the Columbia Steel plant. Appellant was the general contractor and respondent the subcontractor in the work being done at the plant. May 14, 1952, one Colclasure, an employee of respondent, was injured there. He received workmen’s compensation and medical treatment from respondent, his employer, through respondent’s insurance carrier, Globe Indemnity Company. April 23, 1953, Colclasure filed suit against appellant alleging that his injuries were caused by appellant’s negligence. In that suit a lien claim of respondent and Globe for the moneys paid Colclasure under the Workmen’s Compensation Act was filed. Appellant’s

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insurance carrier, Glens Palls Indemnity Company, undertook the defense of that action for appellant. Glens Palls, contending that the agreement of April 11, 1952, required respondent to do so, demanded of respondent that it defend the Colclasure suit for appellant. Respondent refused. No demand to arbitrate under the contract was made by either appellant or Glens Palls during the progress of the Colclasure case. In February, 1955, appellant settled that case by paying damages to Colclasure, and to respondent’s carrier Globe, the compensation paid by it to Colclasure. In 1956, for the first time, appellant demanded arbitration of its claim against respondent arising out of the Colclasure suit. Respondent refused.

The Arbitration Agreement

Appellant contends that as respondent admits there was an arbitration agreement between the parties and that respondent refused to arbitrate, an order requiring arbitration should have issued. This overlooks the crux of the matter, which is, did the “hold harmless” clause of the arbitration agreement purport to cover the situation of a suit by an employee of respondent against appellant for appellant’s negligence? Whether a dispute is one of which the contract requires arbitration is one which must be determined by the court unless the agreement expressly provides that the determination of such a question is to be made by the arbitrators. It is so held in