Massachusetts Appeals Court Rejects Indemnification for Subcontractors Following Construction Accident

A defendant and a third-party plaintiff, C M & B, Inc. (CMB), a general contractor, appealed from a judgment dismissing its indemnification and related claims against its subcontractors Ferreira Concrete Forms, Inc. (Ferreira), and Laserdig. The trial judge ruled, among other things, that the indemnification claim was barred by a governing Rhode Island statute. The Massachusetts Appeals Court agreed and affirmed.In 2009, CMB, having contracted with a property owner to construct a retail store in Rhode Island, subcontracted certain concrete work to Ferreira and certain underground utility work to Laserdig. The subcontracts specified that they were to be construed in accordance with Rhode Island law, and they included indemnification clauses. The owner separately contracted with Meade Construction, Inc. (Meade), to perform certain roofing work.

On September 13, 2009, just as Meade was about to commence work, a tree fell on the partially completed building. Since time was of the essence, CMB asked Laserdig if its on-site personnel could assist in clearing the tree, and Laserdig agreed. Although Ferreira had largely completed its concrete work and had no employees on the site that day, Ferreira and Laserdig were under common ownership and sometimes loaned each other their employees as circumstances required. Accordingly, the common owner decided to loan a Ferreira employee to Laserdig in order to assist the other Laserdig employees, as well as CMB and Meade, in clearing the tree. In the course of this work, Meade placed a ladder against the building but did not sufficiently secure it, nor did CMB safety-check it. As the worker climbed the ladder, it slid to one side, causing the worker to fall and suffer injuries.

He sued both CMB and Meade; CMB filed a third-party complaint for indemnification and other relief against Ferreira and Laserdig. After a trial on the third-party claims, the judge found that the accident resulted from the negligence of both CMB and Meade rather than from any negligence on the part of Laserdig, Ferreira, or the worker. The judge ruled that, under Rhode Island law, CMB could not enforce the indemnification clauses to obtain indemnification for its own negligence, and he therefore ordered judgment for Laserdig and Ferreira on the third-party claims. CMB appealed.

Under Rhode Island law, a provision in a construction contract that purports to indemnify the promisee against liability for damages arising out of bodily injuries to persons proximately caused by or resulting from the negligence of the promisee is against public policy and is void. This statute bars the enforcement of a portion of an indemnification clause that attempts to indemnify the contractor for any negligence on its part.

Assuming that the indemnification clause was triggered on these facts, the statute plainly barred enforcement of the clauses to require Laserdig or Ferreira to indemnify CMB for losses caused by its own negligence, and CMB made no persuasive argument to the contrary. CMB’s principal argument was that since the clauses did not expressly require indemnification of CMB for its own negligence but merely contained general language permitting indemnification for a loss caused by “a party indemnified hereunder” — which may include not only the contractor (CMB) but also the architect, engineer, or owner and its agents and employees — the clauses did not conflict with the Rhode Island statute.

CMB argued that the statute as interpreted in Rodrigues invalidated only those clauses that on their face, rather than as applied to a particular set of facts, required indemnification of a contractor for its own negligence. But CMB did not cite, nor did it find, any language in Rodrigues supporting such a distinction. Moreover, in Rodrigues, unlike here, the general contractor was found not to have been negligent, and thus the statute did not bar its indemnification claim against its subcontractor. Accordingly, the appeals court concluded that CMB was not entitled to any indemnification.

CMB did not argue that, apart from any right to indemnification, it was contractually entitled to a defense from Laserdig and Ferreira or their insurers against the claims asserted by the worker. The subcontracts required Laserdig and Ferreira to name CMB as an additional insured on their general liability policies. In these circumstances, even assuming that CMB pressed its failure-to-defend claims in the trial court, the appeals court saw no error in the judgment for Laserdig and Ferreira on CMB’s claims.

If you or a loved one was harmed by another party’s negligence, you may need the assistance of a construction accident lawyer to seek compensation. At the Neumann Law Group, our Massachusetts attorneys provide trustworthy legal representation to victims all over the state. Contact us toll-free at 800-525-NEUMANN or use our online form to set up a free consultation.

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