California drunk driver Fred Lowe, 47, of Sacramento kills 4 people in a white Nissan sedan after he collides with it with his blue Mercedes on I-80 in San Pablo, CA. Daryl Horn, 50, and Joseph Horn, 14, both of Napa, and Troy Biddle, 52, and Baden Biddle, 13, both of Bainbridge Island in Washington, died in the crash.

Troy and Baden Biddle were killed in a multi-vehicle crash on Interstate 80 in San Pablo.

Troy and Baden Biddle were killed in a multi-vehicle crash on Interstate 80 in San Pablo.

California drunk driver Fred Lowe, 47, of Sacramento kills 4 people in a white Nissan sedan after he collides with it with his blue Mercedes on I-80 in San Pablo, CA

California drunk driver Fred Lowe, 47, of Sacramento kills 4 people in a white Nissan sedan after he collides with it with his blue Mercedes on I-80 in San Pablo, CA

California drunk driver Fred Lowe, 47, of Sacramento kills 4 people in a white Nissan sedan after he collides with it with his blue Mercedes on I-80 in San Pablo, CA

Napa community mourns loss of two killed in hit-and-run crash

Monday, November 27, 2017 10:30PM

 

NAPA, Calif. (KGO) -- 

 

A hit and run crash that ended with four family members dead and six others wounded claimed the lives of a father and son from Napa who were described by community members as an "All-American Family" taken from this Earth too soon.

Cam Neal, Athletic Director and teacher at Vintage High School in Napa recalls the joy Daryl Horn and his son Joe brought to all around him.
"I wish people have a chance to know Daryl and see what Joe was gonna do. He was a real special kid."


This is the sentiment, echoed by so many in Napa who knew 14-year old Joe Horn and his father Daryl Horn. The news of their passing, almost too much to bear.

Just days after Thanksgiving, Daryl was on a family trip with Joe and his older son, Jared, and two relatives from Washington State, 52 year old Troy Biddle and his son, 12 year old Baden Biddle.

While driving down I-80 in San Pablo, they were hit by Fred Lowe. He was drunk. His license had already been suspended from a prior drunk driving offense. The family's car crossed the median and flipped. Everyone inside, except Jared who was driving, was killed.

Shannon De Valois used to date Jared and through a veil of tears described the sadness she felt for what happened. "My thoughts are with his family, everyone in town is really devastated."
"Words can't describe the sadness," says principal of Vintage High School, Mike Pearson.


The devastation was felt, perhaps deepest in the sports community at Vintage High School where Daryl was a beloved coach. Neal tells ABC7 Daryl had a special connection with all his students.

"He had a nickname for every kid he coached. It stuck with them for years."

A community's hearts are with the surviving Horn family members - mom Denise, big sister Greta and Jared, a star baseball player at Cal.

The family released a statement Monday night on behalf of the Horn and Biddle families, saying, "These man were dedicated to youth sports and mentoring children. Through the years they have had tremendous impact on the lives of young boys and girls that their communities will benefit from for generations."

 

=========================

Monday, November 27, 2017 06:34PM

SAN PABLO, Calif. (KGO) --

A family is in mourning after four of its members were killed in a hit-and-run crash on I-80 in San Pablo on Saturday night.

Relatives Daryl Horn, 50, and Joseph Horn, 14, both of Napa, and Troy Biddle, 52, and Baden Biddle, 13, both of Bainbridge Island in Washington, died in the crash.


=================

A baseball player at UC Berkeley survived a deadly crash on Interstate 80 in San Pablo on Saturday, but four members of his family were killed, officials announced Monday.

Jared Horn of Napa was driving along I-80 at the San Pablo Dam Road exit when the multi-vehicle crash, which is being investigated as a hit-and-run, occurred. 

Daryl Horn, 50, and Joseph Horn, 14, both of Napa, and Troy Biddle, 52, and Baden Biddle, 12, both of Bainbridge Island in Washington, died in the crash, according to the Contra Costa County coroner's office.

In a statement the Horn and Biddle families said they are focusing on supporting each other and ask for privacy during this time. (Full statement attached at the bottom of this article)

Troy and Baden Biddle were killed in a multi-vehicle crash on Interstate 80 in San Pablo.
Photo credit: Biddle Family  

Mike Neu, the head coach of the Golden Bears' baseball squad, wrote in a statement that the team "cannot image what Jared is going through right now" and offered thoughts and prayers to him and his family.

"Jared is a respected and beloved member of our team as well as an incredible student-athlete, teammate and friend," Neu wrote in the statement. "We will give him any and all support that we can as he goes through this unthinkably difficult time."

The suspected driver who caused the deadly wreck has been identified as Fred Lowe of Sacramento, officials said. Lowe has been taken into custody.

"A witness identified the driver, saw him hit the vehicle and leave," CHP Officer Matthew Hammer said. "He relayed the info the Contra Costa County Sheriff’s Department."

Lowe, 47, was driving on a suspended license due to a prior DUI conviction, the CHP said. In addition, he was involved in a second hit-and-run shortly after the fatal crash when he smashed into a parked vehicle near San Pablo Dam Road, right off the El Portal onramp, not far from the original crash site.

Five cars were involved in the original wreck, according to the CHP. The car Horn was driving overturned. He was taken to the hospital and later released, but four passengers in the car he was in were pronounced dead at the scene.

Troy and Baden Biddle were killed in a multi-vehicle crash on Interstate 80 in San Pablo.
Photo credit: Biddle Family  

Six others, including a child, were also injured in the crash involving five vehicles, according to the CHP.

The freeway was shut down for about seven hours overnight, the CHP said.

The CHP said it typically sees a spike in impaired drivers around the holidays. The department has been operating under what’s called a maximum enforcement period. That means more officers on the highways across the Bay Area, with a goal of keeping people safe.

"In our area, we have a lot of really bad collisions, a lot of fatalities, and so we are really stopping and slowing people down to prevent those collisions," CHP Officer Charlotte Brannon said.

Another issue is drivers and passengers not wearing seatbelts. The CHP said of 27 fatalities a year ago in its jurisdiction, 14 were not wearing seatbelts.

The Biddle and Horn families provided the following statement Monday:

UC Berkeley Baseball Player Survives San Pablo Crash That Killed 4 People: Sources

A baseball player at UC Berkeley survived a deadly crash on Interstate 80 in San Pablo on Saturday, but four other people in the car he was in were killed, sources tell NBC Bay Area. Pete Suratos reports.

(Published Monday, Nov. 27, 2017)

"The Horn and Biddle families appreciate the tremendous outpouring of support from their communities. Troy Biddle and Daryl Horn were beloved fathers, husbands, sons, brothers, friends and coaches. Baden Biddle (13) and Joe Horn (14) were beautiful, caring and innocent boys whose loss will be felt by all those who knew them. The families are focusing on supporting each other and ask for privacy during this time. Amanda and Denise would appreciate if the message and memory of those lost were of their love of family and community. These men were dedicated to youth sports and mentoring children. Through the years they have had a tremendous impact on the lives of young boys and girls that their communities will benefit from for generations. The dads and their boys spent their last day doing what they loved, playing in an annual father son basketball tournament. It was an amazing day filled with pride and laughter. The surviving families consist of Amanda Horn (Biddle) and their daughter Devon Biddle (10), Denise Horn their daughter Greta and son Jared. The families have a deep love for each other and will use their strength to manage this difficult time."

=========================

SAN PABLO, CA — A Sacramento man suspected of driving under the influence and causing a catastrophic freeway crash Saturday that killed four people has been arrested, the California Highway Patrol reported.

Fred Lowe, 47, left the crash scene at Interstate 80 and was apprehended after Contra Costa County Sheriff’s Office deputies spotted a blue Mercedes reported to be involved in the crash, CHP spokesman Officer Matther Hamer said. Details of the arrest and where deputies spotted the Mercedes were not immediately available Sunday.
 

Lowe was arrested on suspicion of felony vehicular manslaughter, felony hit-and-run and felony DUI, Hamer said. The crash also hospitalized six people, but the CHP on Sunday did not have information on the extent of their injuries or conditions.

According to the CHP, the blue Mercedes that Lowe is suspected of driving collided with a white Nissan sedan while going eastbound on I-80 near the San Pablo Dam Road exit around 8:10 p.m. The Nissan lost control and went over the center divide and into the westbound lanes, where it overturned.

All four passengers in the Nissan died at the scene, Hamer said. Authorities have not identified them.

The Nissan’s driver went by ambulance to a hospital, along with the driver of a Honda and two people each from a Mazda SUV and a Lincoln SUV. Those three cars were going west on I-80 and all crashed as the Nissan came over the center divide, the CHP reported.

The blue Mercedes also is believed to have been involved in another hit-and-run earlier on I-80, Hamer said. Details of that incident were not available immediately.

The CHP closed all westbound lanes on I-80 and diverted traffic, an unwelcome development for commuters anytime on a Saturday but especially so on the first Saturday of the holiday shopping season. They diverted traffic onto El Portal Drive, and side streets quickly clogged.

One lane on eastbound I-80 also closed down for more than an hour after the crash. All westbound lanes were opened around 4 a.m. Sunday.

Lowe remained at the County Jail in Martinez on Sunday in lieu of $1.15 million bail.



===================


DUI arrest made in California multi-car crash that killed 4


November 26, 2017
 
By The Associated Press

SAN PABLO, Calif.


Authorities arrested a Northern California man they say was behind a multi-car pileup that killed four people and injured six others.

Fred Lowe of Sacramento was arrested on suspicion of felony vehicular manslaughter, felony hit-and-run and felony DUI, California Highway Patrol spokesman Officer Matthew Hamer told the East Bay Times .

Hamer said Lowe, 47, left the crash scene at Interstate 80 in the San Francisco area's east bay and was apprehended after Contra Costa County Sheriff's deputies spotted a blue Mercedes reported to be involved in the crash.

The blue Mercedes Lowe is suspected of driving collided with a white Nissan sedan Saturday night, causing the Nissan to flip over and crash into three vehicles traveling in the opposite direction.

All four passengers in the Nissan died at the scene. The driver was hospitalized.

Details of the arrest were not available and CHP authorities did not have information on the six people who were hospitalized.

Lowe was at the Martinez Detention Facility on Sunday in lieu of $1.15 million bail.

It was not immediately known if he had an attorney, and attempts by The Associated Press to reach family and associates for comment were unsuccessful.





===================



SAN PABLO, CA (BCN)

Four persons died tonight in a five-vehicle collision on westbound Interstate Highway 80 in San Pablo, California Highway Patrol officials said.

Five more people were transported to the hospital with injuries, according to CHP.

The collision was reported at 8:11 p.m. at Highway 80 at the San Pablo Dam Road off-ramp.

A Sig-alert was issued at 9:22 p.m. because all westbound lanes of Highway 80 are blocked near the collision.

CHP officials do not have an estimate for when the westbound lanes will reopen. One eastbound lane is also closed.

The complexity of indemnity provisions and insurance coverage mandates that contractors and subcontractors closely review these provisions with their attorneys and insurance consultants

It has become increasingly common for those in the construction industry to encounter indemnity provisions in their contracts. Indemnity provisions are agreements where one party (the promisor) agrees to protect and hold harmless the other party (the promisee) from liability arising from certain risk.

These provisions can shift the risk of liability from a negligent party (the promisee) to an innocent party (the promisor) and therefore have been criticized as being unfair.

Ohio has a statute, Ohio Revised Code 2305.31, which provides that an indemnity provision in a construction contract that purports to indemnify and hold harmless a party from personal injury or property damage arising from his own negligence is void as against public policy and unenforceable.

This statute has been interpreted to mean that the promisor (i.e., subcontractor) cannot be required to indemnify the promisee (i.e., general contractor) for the promisee’s own negligence. It has also been interpreted to prohibit the shifting of liability arising from the negligence of the promisee, regardless of whether the promisee (i.e., general contractor) is one percent negligent or 100 percent negligent.

Accordingly, Ohio construction contracts, regardless of how they are written, generally cannot require one party to indemnify another for the other party’s negligence, in whole or in part. This means that the risk of liability remains with the negligent party or parties, as if such an indemnity provision never existed.

However, a Court of Appeals case out of Dayton (COULTER et al. v. DAYTON POWER & LIGHT COMPANY, 134 Ohio App.3d 620 (1999)) determined that “hold harmless” language was enforceable in some aspects. The court ruled in this case that the contractor pay the owner’s attorney’s fees and expenses (but not the damages for the injured employee) incurred by the owner in defending a claim asserted by the contractor’s injured employee.

This case appears to carve out an exception to the general unenforceability of such provisions under Ohio Law, but a different Court of Appeals case from another part of the state held otherwise.

The Dayton case means that while a contractor should be protected against an injured employee’s direct claims under worker’s compensation, if the injured employee sued or threatened to sue the owner, the contractor may be liable (at a minimum) for the owner’s attorney’s fees and costs.

In view of this case, it is important for subcontractors and contractors to closely scrutinize their contracts and modify the indemnification provisions appropriately.

Some owners or contractors are now requiring contractors or subcontractors to post insurance covering the contractor’s or owner’s negligence – in essence to insure indirectly what is unenforceable by contract.


A Court of Appeals case out of Cleveland (WADDELL et al., v. LTV STEEL COMPANY, INC. et al.) found that indemnification clauses that obligate the contractor or subcontractor to purchase a liability insurance policy to insure against the owner’s negligence are void, as well as any agreement to indemnify the owner for attorney’s fees and costs.

In any event, the complexity of indemnity provisions and insurance coverage mandates that contractors and subcontractors closely review these provisions with their attorneys and insurance consultants.

Once a contract is negotiated, we recommend that the contractor or subcontractor e-mail a copy of the insurance and indemnity provisions in the contract to their insurance agents and request the precise type of policy necessary to cover this risk. 

===================

COULTER v. DAYTON POWER & LIGHT CO.

No. 17602.

---

134 Ohio App.3d 620 (1999)

COULTER et al. v. DAYTON POWER & LIGHT COMPANY, Appellant; Ohio Bell Telephone Company, Appellee, et al.

Court of Appeals of Ohio, Second District, Montgomery County.

Decided July 30, 1999.

---

Attorney(s) appearing for the Case

Scott R. Thomas and Maria J. Papakirk, for appellant.
Edward L. Bettendorf, for appellee.

---

WOLFF, Judge.

The Dayton Power & Light Co. ("DP&L") appeals from a judgment of the Montgomery County Court of Common Pleas, which entered judgment in favor of the Ohio Bell Telephone Co. ("Ohio Bell"), in a dispute over the applicability of a contractual indemnification provision.

The facts giving rise to this appeal are as follows.

[134 Ohio App.3d 622]

In 1993, DP&L granted Ohio Bell an easement to use DP&L's land to install a fiber-optic cable. In the agreement, Ohio Bell agreed to indemnify DP&L for any loss, damage, or expense related to the easement. Two workers were subsequently injured while excavating the site, allegedly because DP&L had failed to adequately mark buried gas and electric lines, and the workers filed suit. DP&L filed a cross-claim against Ohio Bell based on the indemnification provision. DP&L filed a motion for summary judgment on the issue of indemnification, and the trial court denied the motion on May 20, 1997. On August 18, 1997, when other claims were still pending in the case, the trial court denied a DP&L motion for reconsideration and refused to grant Civ.R. 54(B) certification to its May 20, 1997 judgment entry denying summary judgment. 

The other claims were later settled so that the sole remaining issue in the case was whether DP&L was entitled to indemnification from Ohio Bell. At that point, the trial court concluded that it would make "no sense and would not be judicially economical now to have a trial on comparative negligence with an `automatic' appeal of the indemnification issue" to the court of appeals. The court granted Civ.R. 54(B) certification on its May 20, 1997 order nunc pro tunc and "enter[ed] final judgment in favor of Ohio Bell on the indemnification question."

DP&L raises one assignment of error on appeal:

"The trial court erred to the prejudice of DP&L by improperly denying DP&L'S motion for summary judgment."

DP&L's argument under this assignment of error is threefold. First, DP&L claims that the trial court erred in concluding that the scope of the indemnification provision was ambiguous and that two sophisticated business entities cannot contractually allocate responsibility for damages resulting from the negligence of one party to the other party. Second, DP&L claims that the trial court erred in relying upon R.C. 2305.31 in concluding that the contractual indemnification provision was against public policy. Third, DP&L contends that, even if the indemnification provision was void as applied to damages resulting from its own negligence, DP&L was nonetheless entitled to indemnification for its attorney fees and costs.

The indemnification provision in the easement provides:

"In consideration for the [easement], [Ohio Bell] hereby agrees to indemnify and save [DP&L] free and harmless from any and all loss, damage, or expense, including but not restricted to attorneys fees and court costs, arising from, caused by or incident or related to, injuries or damages to property (including property of [Ohio Bell]) or persons or the death of any person or persons, including but not restricted to employees and agents of the Owners, in the performance of their duties or otherwise; which may arise out of or be incident or related in any way

[134 Ohio App.3d 623]

to the easement described above on [DP&L's] premises, subject, however, to the provisions of Section 2305.31 of the Revised Code of Ohio, if applicable, and provided further, that nothing herein shall require indemnification as to any claims against [Ohio Bell] arising under the Ohio Workers' Compensation Law.

"* * *
"This easement is subordinate to all existing facilities of [DP&L], either above or below the surface. [DP&L] has attempted to accurately locate all of its underground facilities; however, [Ohio Bell] shall be responsible for any damage to said facilities whether accurately located or not."

The trial court found that these provisions were ambiguous because the first paragraph required Ohio Bell to indemnify DP&L for all loss, including damages to property and bodily injury, while the second paragraph required Ohio Bell to indemnify DP&L for damage to the underground facilities if they were not properly located, but was unclear as to "whether Ohio Bell is held responsible for bodily injury if the underground facilities are inaccurately located." (Emphasis sic.) The trial court construed the second paragraph to establish that "the entire agreement only relates to damage to the promisee's [DP&L] own property."

We disagree with the trial court's finding that the provisions of the easement were ambiguous as to the allocation of responsibility for damages, whether resulting from bodily injury or damage to property. In our view, the second paragraph did not narrow the scope of the first. Rather, it elaborated on the first paragraph by making clear that Ohio Bell's duty to indemnify included situations in which DP&L had failed to accurately locate all of its underground facilities. Moreover, the second paragraph specifically referred to underground facilities and damage thereto, which explains why there was no mention of responsibility for bodily injury in that section. The trial court's interpretation did not recognize that the second paragraph had a narrower scope than the first and ignored the plain language of the first paragraph indicating that Ohio Bell would hold DP&L harmless "from any and all loss, damage, or expense * * * arising from, caused by or incident or related to, injuries or damages to property * * * or persons" related to the easement. Thus, we find that these paragraphs are not inconsistent and that the trial court erred in concluding that the indemnification provision in the easement was ambiguous.

Moreover, Ohio law does not require that contracts purporting to hold an indemnitee harmless for its own negligence contain express language to that effect. In Delco Products Div., Gen. Motors Corp. v. Dayton Forging & Heat Treating Co. (Feb. 2, 1979), Montgomery App. No. 6017, unreported, 1979 WL 155686, we held that general language providing indemnification for "all liabilities, claims or demands for injuries or damages to any person or property growing out

[134 Ohio App.3d 624]

of the performance of this contract" clearly and unequivocally included negligence by the indemnitee. Id. at 10. In so holding, we observed that it "`is difficult to see how more comprehensive or inclusive language could have been used. Negligence might have been spelled out specifically, but this is not required.'" Id. at 8, quoting Gen. Acc. Fire & Life Assur. Corp., Ltd. v. Smith & Oby Co. (C.A.6, 1959), 272 F.2d 581, 585, 11 O.O.2d 346, 349. Similarly, it is difficult to imagine an indemnification provision stated more broadly than the one contained in DP&L's contract with Ohio Bell, wherein Ohio Bell agreed "to indemnify and save [DP&L] free and harmless from any and all loss, damage, or expense, including but not restricted to attorneys fees and court costs, arising from, caused by or incident or related to, injuries or damages to property (including property of [Ohio Bell]) or persons or the death of any person or persons * * * in the performance of their duties or otherwise; which may arise out of or be incident or related in any way to the easement." Thus, we conclude that this language clearly encompassed indemnification for DP&L's own negligence. See, also, Teledyne Osco Steel v. Woods (1987), 39 Ohio App.3d 145, 529 N.E.2d 1271.

The Supreme Court of Ohio expressed a similar view of an indemnification agreement in Glaspell v. Ohio Edison Co. (1987), 29 Ohio St.3d 44, 29 OBR 393, 505 N.E.2d 264, which addressed the general rule that indemnification agreements should be narrowly construed. In that case, the Supreme Court specifically declined to narrowly construe an indemnification agreement that protected an indemnitee from its own negligence where both parties were sophisticated business entities, finding that such a construction was unreasonable under the circumstances. The court stated that the rule of narrowly construing this type of indemnification agreement had been developed to protect a contracting party in a disparately weaker bargaining position from the stronger party's attempt to impose wholly inequitable burdens upon the weaker party. Id. at 47, 29 OBR at 395-396, 505 N.E.2d at 266. The court found that there was no need to construe indemnification provisions narrowly when the burden of indemnification had been assented to in a context of free and understanding negotiation. Id.

Because both parties to this agreement were sophisticated business entities that were not in disparate bargaining positions and that were certainly capable of looking out for their own interests, we conclude that the agreement between DP&L and Ohio Bell did require Ohio Bell to indemnify DP&L for damages resulting from DP&L's own negligence and that this requirement did not violate public policy absent a statutory provision to the contrary.
The trial court found that R.C. 2305.31 provided statutory authority for concluding that the indemnification provision violated public policy. R.C. 2305.31 states:

[134 Ohio App.3d 625]

"A covenant, promise, agreement, or understanding in, or in connection with or collateral to, a contract or agreement relative to the design, planning, construction, alteration, repair, or maintenance of a building, structure, highway, road, appurtenance, and appliance, including moving, demolition, and excavating connected therewith, pursuant to which contract or agreement the promisee, or its independent contractors, agents or employees has hired the promisor to perform work, purporting to indemnify the promisee, its independent contractors, agents, employees, or indemnities against liability for damages arising out of bodily injury to persons or damage to property initiated or proximately caused by or resulting from the negligence of the promisee, its independent contractors, agents, employees, or indemnities is against public policy and is void."

In sum, R.C. 2305.31 voids construction contracts that attempt to indemnify an indemnitee against liability arising out of or proximately caused by its own negligence.

The trial court found that the contract between DP&L and Ohio Bell fell within the ambit of R.C. 2305.31, which "voids a contract which attempts to indemnify DP&L against liability for damages arising out of bodily injury, proximately caused by the negligence of DP&L." In so concluding, the trial court noted that Ohio Bell's construction of an underground communication system on DP&L's property was "in connection with, or collateral to an agreement relative to the construction of an appliance including excavating connected therewith" and that the contract involved indemnification of the indemnitee, DP&L, for its own negligence.

Although the trial court correctly observed that DP&L sought indemnification for its own alleged negligence and that the type of work to be undertaken by Ohio Bell pursuant to the contract was the type of construction specified in R.C. 2305.31, the trial court's application of the statute to the arrangement between DP&L and Ohio Bell did not give effect to all of the statute's pertinent provisions. Significantly, R.C. 2305.31 applies only to contracts or agreements "pursuant to which * * * the promisee * * * has hired the promisor to perform work." In the context of such an employment relationship, R.C. 2305.31 prohibits the employer from shifting the responsibility for its own negligence onto an employee through an indemnification provision. This restriction is in keeping with the purpose underlying R.C. 2305.31 to require employers to provide employees with a safe place to work. Lamb v. Armco, Inc. (1986), 34 Ohio App.3d 288, 290, 31 OBR 610, 611-612, 518 N.E.2d 53, 55-56; Best v. Energized Substation Serv. (Aug. 17, 1994), Lorain App. No. 93-CA-005737, unreported, 1994 WL 440471, at 10. The contract between DP&L and Ohio Bell, however, did not involve DP&L hiring Ohio Bell to perform construction work. Rather, the contract granted Ohio Bell an easement over DP&L property in the use of which Ohio Bell would

[134 Ohio App.3d 626]

presumably hire others to perform construction work. Thus, the relationship between DP&L and Ohio Bell was not the type of relationship contemplated by the legislature when it enacted R.C. 2305.31. The cases cited by the trial court in support of its decision were not factually similar to this case but presented situations in which the indemnitee had contracted with the indemnitor to perform the type of construction work described in R.C. 2305.31. Thus, the trial court erred in concluding that the indemnification provision was void and against public policy pursuant to R.C. 2305.31.

Finally, DP&L contends that, even if it was not entitled to indemnification for damages attributable to its own negligence, it was nonetheless entitled to indemnification for its attorney fees and costs as provided in the parties' agreement. DP&L cites Moore v. Dayton Power & Light Co. (1994), 99 Ohio App.3d 138, 142, 650 N.E.2d 127, 130, in support of the severability of a provision providing indemnification for attorney fees and costs even where other portions of an indemnification provision are unenforceable on public policy grounds. Because we hold that DP&L is entitled to indemnification from Ohio Bell for all of its damages, this question is moot. DP&L is entitled to attorney fees and costs in addition to the other sums owed pursuant to the indemnification agreement.

The assignment of error is sustained.

The judgment of the trial court is reversed, and summary judgment will be entered in favor of DP&L.
Judgment reversed.
FAIN and FREDERICK N. YOUNG, JJ., concur.

1 worker killed, another injured while working on a Choate Construction project for Staples in Steele Creek in North Carolina and fell about 40 feet.

CHARLOTTE, N.C. - One worker died, and another was seriously injured, after an accident at a construction site in southwest Charlotte.

The victims were injured while working on a Choate Construction project in Steele Creek and fell about 40 feet. Officials with the company said they are trying to determine how the accident occurred.

Charlotte-Mecklenburg police said that OSHA is investigating the accident.

Police said one worker died at the hospital and the other worker is in stable condition.



Officials said they were called out for traumatic injuries that occurred in the 3700 block of Westinghouse Boulevard.



Numerous fire and police crews converged on the scene.

Investigators focused on the area around a crane.

There's a sign at the construction site noting that a Staples is coming soon.

Choate Construction is the general contractor on the project. Merriman Schmitt Architects is the architect and Burton Engineering is the civil engineer.

===================



CHARLOTTE, NC (FOX 46 WJZY) - A construction worker died and another was seriously injured in an industrial accident in southwest Charlotte Sunday afternoon, police say.

The accident happened on the construction site for the Staples Distribution Center in the 3700 block of Westinghouse Boulevard by Choate Construction.

According to Charlotte-Mecklenburg police, two people fell about 40 feet while working on the site. Both were taken to Carolinas Medical Center Main where the first victim was pronounced deceased. The second victim is now stable.


Choate Construction Company was founded in 1989, based on the philosophy of excellence over volume. The mission of Choate Construction Company is to provide unparalleled quality and service, coupled with maximum return on investment, resulting in the optimal facilities solution to enhance the success of the Client. Choate is one of the largest general contractors in the Southeast specializing in Preconstruction, Design-Build, LEED Programming/implementation and Construction Management services for multiple market sectors.

Choate Construction Company became a USGBC member company in April of 2003 by the U.S. Green Building Council and has 38 LEED APs throughout the company. Choate is also an active member of the Urban Land Institute and CoreNet.

Choate’s number one asset is Reputation and bases its future on the basis of client recommendations. Choate has earned a substantial base of repeat clients and new business generated from enthusiastic referrals from these repeat clients.


===================


$40M Staples distribution facility underway on Westinghouse Boulevard



The Keith Corp. is developing a 600,000-square-foot build-to-suit for Staples on Westinghouse Boulevard.


By Ashley Fahey – Staff Writer, Charlotte Business Journal
Jun 27, 2017, 2:59pm

A large tract of land off Westinghouse Boulevard has been confirmed as the site of a 600,000-square-foot, build-to-suit industrial building for Staples.

TKC CCLI LLC, affiliated with Charlotte developer The Keith Corp., recently acquired 77.5 acres at 3719 Westinghouse Blvd. The real estate firm is developing a $40 million distribution center for Staples (NYSE:SPLS) on the site, according to Alan Lewis, development partner at The Keith Corp.

The Charlotte Business Journal previously reported that Staples was the rumored tenant at Project Hollywood, which called for a 600,000-square-foot distribution facility on the site The Keith Corp. recently acquired.

The Keith Corp. acquired about half of the site, which totals 154 acres, for $4.3 million on June 20, according to Mecklenburg County real estate records. The seller was Westinghouse Real Estate Development LLC, affiliated with Peter Gilchrist III.

The estimated $40 million project is expected to deliver in April, Lewis said. The Framingham, Mass., retailer currently operates three distribution centers in the Charlotte region.

Staples could not be reached by deadline for more details about the distribution facility.

Lewis said The Keith Corp. had an option-to-purchase agreement for the property. The firm has been marketing the site, which is split by a Norfolk Southern Railway right of way, for two development opportunities. The distribution center under construction is a realized vision for one part of the land, and Lewis said The Keith Corp. is in planning phases for the remaining portion of the property.

Choate Construction is the general contractor on the project. Merriman Schmitt Architects is the architect and Burton Engineering is the civil engineer.

UNSAFE SPEED ON A WET ROAD KILLS 5 NORTHEASTERN STATE UNIVERSITY STUDENTS: Teen driver 18-year-old Donovan Caldwell caused the death of 4 other teens because he was was likely speeding on a wet road when he tried to negotiate a curve. However, the roadway was wet and his truck slid into the guardrail on the Welling Bridge near Tahlequah, OK plunged into the Illinois River

CHEROKEE COUNTY, Okla. – It was a crash that stunned an Oklahoma community earlier this year.

On Sept. 17, troopers with the Oklahoma Highway Patrol were called to an accident around 10:40 p.m. on the Welling Bridge near Tahlequah.

Investigators say a pickup truck carrying five teenagers drove through a railing on the bridge and fell 35 feet into the river below.

Crews pulled the bodies of 18-year-old Donovan Caldwell, 18-year-old Jessica Swartwout, 19-year-old Drake Wells, 18-year-old Lily Murphy and 18-year-old Rihana Seely from the vehicle.

Friends tell News 4 the group was out celebrating Wells' 19th birthday. Officials say all five teenagers were students at Northeastern State University.

"I cannot fathom the pain the families and friends of these young people are going through as a result of this terrible and tragic accident. My thoughts and prayers are with them this morning," a statement from the president of NSU read, in part.

"This will have a profound effect on all of us and Northeastern State University for many years to come. Supporting our students, faculty and staff will remain our top priority."

Now, it seems that troopers have a few more answers into what happened in the moments before the deadly crash.



On Wednesday, officials with the Oklahoma Highway Patrol announced that Caldwell was likely speeding when he tried to negotiate a curve. However, the roadway was wet and his truck slid into the guardrail.

Investigators say Caldwell was not impaired, but was simply going too fast for the road conditions.



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TAHLEQUAH, Okla. – Hundreds gathered to pay their respects to five students who died when a pickup crashed into a river in Cherokee County.

It was supposed to be a celebration.

Friends say 18-year-old Donovan Caldwell, 18-year-old Jessica Swartwout, 19-year-old Drake Wells, 18-year-old Lily Murphy and 18-year-old Autumn Seely were out celebrating Wells’ 19th birthday on Sunday.



Around 10:40 p.m. on Sunday, investigators say Caldwell was driving down Wellings Bridge when he allegedly lost control of his pickup.

The truck veered and crossed over the northbound lane and through the railing, falling about 35 feet into the Illinois River.

Sadly, the crash killed all five teenagers inside the truck.

“We left chapter around like 9:45, so it was like, man, between that time, like how did all this just happen?” Tim Gardenhigh told KFOR on Monday.

The news sent shockwaves through the Northeastern State University campus.

“When I found out, I was just devastated. I knew it was Donovan,” said Nicholas Young.

On Monday night, hundreds of students and staff members gathered to remember those who were taken too soon at a candlelight vigil.

Also, university officials added the students’ names to the student memorial bench that is tucked away on NSU’s campus.



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Five teenagers killed after speeding pickup truck crashes through guardrail, falls into river
 
September 18, 2017



CHEROKEE COUNTY, Okla. – A community is in shock following the deaths of five teenagers near Tahlequah.

Troopers with the Oklahoma Highway Patrol were called to an accident around 10:40 p.m. on Sunday night on the Welling Bridge.

Investigators say a pickup truck carrying five teenagers drove through a railing on the bridge and fell 35 feet into the river below.

Crews pulled the bodies of 18-year-old Donovan Caldwell, 18-year-old Jessica Swartwout, 19-year-old Drake Wells, 18-year-old Lily Murphy and 18-year-old Rihana Seely from the vehicle.

Officials say all five teenagers were students at Northeastern State University.


“Just before 1:00 am, I was contacted by Campus Police and informed that five NSU students were killed in an auto accident in proximity to the Welling Bridge, south of Tahlequah. The news was devastating and crushing.

The Oklahoma Highway Patrol reports the driver was 18-year-old Donovan Caldwell of Muskogee. The passengers were identified as 18-year-old Jessica Swartwout of McAlester; 19-year-old Drake Wells of Thackerville; 18-year-old Rhianna Seely of Salina and 18-year-old Lily Murphy of Gentry, AR. Their families have been notified.

I cannot fathom the pain the families and friends of these young people are going through as a result of this terrible and tragic accident. My thoughts and prayers are with them this morning.

Activities have been underway throughout the night to provide counselors for the friends and co-students. Notification of the faculty who taught the students is underway. If you feel you need help in any way, please contact HawkReach Counseling Services at 918-444-2042 or Student Affairs at 918-444-2120. I have every confidence in the compassion of the NSU family to pull together and support those who are experiencing so much pain and sadness.

This will have a profound effect on all of us and Northeastern State University for many years to come. Supporting our students, faculty and staff will remain our top priority.

The NSU Community will be updated regarding memorial services and other related details as they become available,” a statement from the president of NSU read.

At this point, what caused the crash is still under investigation.   However, it appears that the teen driver was speeding for the road conditions and failed to negotiate the curve, eventually hitting the guardrail and plunging into the river.  He will not do that again.

A candlelight vigil is planned for Monday night at 7:30 p.m. at Second Century Square on the NSU campus.


The moral of the story is:  SPEED KILLS.  SLOW DOWN!

Five people killed near Newcastle, Utah after two SUVs collide head-on on state route 56

NEWCASTLE, Iron County, Utah — 

Five people are dead after a head-on collision involving two SUVs late Saturday afternoon, officials report.

At around 4:30 p.m., an SUV traveling west on state Route 56 and an SUV heading east crashed into each other just one mile outside of Newcastle, according to the Utah Highway Patrol. One of the vehicles had four occupants, with only one occupant in the other. All five occupants died, UHP said.

Police could not immediately confirm whether the occupants died at the scene or were transported to a hospital and later died from their injuries.

The area near the crash had no cellular service and more information is expected to be released on the collision when troopers who responded to the crash have cell service.

This story will be updated as more information becomes available.