Lockheed Missiles & Space Co. v. Gilmore Industries, Inc.

Opinion

MILLER, J.

Lockheed Missiles and Space Company (hereinafter Lockheed) and Harbor Insurance Company appeal from a judgment in favor of Gilmore Industries, Inc., aka M.B. Electronics Division (hereinafter M.B.) following the granting of M.B.’s motion for summary judgment.

The facts of the case are undisputed. In 1965 Lockheed purchased a shaker-amplifier system from M.B. The system began to malfunction in August 1970 and on August 24, 1970, Lockheed sent M.B. a written purchase order to make repairs.

Section one of the purchase order prepared by Lockheed provides in pertinent part: “Acceptance. This order becomes the exclusive agreement between the parties for the supplies, subject to the terms and conditions hereof, when accepted by acknowledgement or commencement of performance.”

[558]

Section nine of the purchase order is an indemnity clause. It states: “In the event Seller, its employees, agents, subcontractors and/or lower-tier subcontractors enter premises occupied by or under the control of Buyer in the performance of this order, Seller shall indemnify and hold harmless Buyer, its officers and employees from any loss, cost, damage, expense or liability by reason of property damage or personal injury of whatsoever nature or kind arising out of, as a result of, or in connection with such performance occasioned in whole or in part by the actions or omissions of Seller, its employees, agents, subcontractors and/or lower-tier subcontractors.”

On August 31, 1970, M.B. sent a service representative, Donald Wichman, to the Lockheed plant. He performed tests on the shaker-amplifier system on August 31 and September 1. On September 1, 1970, while testing the system, Wichman was electrocuted.

Wichman’s heirs sued Lockheed and that suit was settled in February 1976 for $115,000. Lockheed brought this suit to recover this amount, its fees and costs from M.B.

Summary judgment was granted in favor of M.B. by the lower court on the basis that no representative of M.B. had signed the purchase order prior to Wichman’s death and, pursuant to section 3864 of the Labor Code,