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

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.”

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…