Opinion
14-P-1215
07-20-2015
VINCENT LEAHY v. DANIEL O'CONNELL'S SONS, INC.; GENERAL MECHANICAL CONTRACTORS, INC., & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Third-party plaintiff Daniel O'Connell's Sons, Inc. (DOC), appeals from the entry of summary judgment in favor of third-party defendants General Mechanical Contractors, Inc. (GMC), and Peerless Insurance Company (Peerless) on DOC's complaint for indemnification. We affirm.
Background. We summarize the undisputed material facts, reserving discussion of some facts for the issues raised.
1. The general contract. The Commonwealth's Division of Capital Asset Management (DCAM) engaged DOC to act as general contractor for the remodeling of the J. Michael Ruane Judicial Center in Salem (the Project). DCAM and DOC executed a general contract, which required DOC to "supervise and direct the Work, using [DOC]'s best skill and attention." Pursuant to § 14 of the general contract, DOC was required to: "(1) Ensure that no laborer or mechanic shall be required to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his/her health and/or safety . . .; (2) Protect the lives, health, and safety of other persons; and (3) Prevent damage to property, materials, supplies, and equipment."
"Work" is defined in the contract to include "all construction and other services required to be supervised, overseen, performed or furnished by [DOC] or that the Contract Documents require [DOC] to cause to be supervised, overseen, performed or furnished."
"To the fullest extent permitted by law," the general contract required DOC to indemnify DCAM "from and against all claims, damages, losses and expenses . . . arising out of or resulting from [or in connection with] the performance of the Work . . .; or any act, omission, or neglect of [DOC]'s Personnel." The general contract also required subcontractors, "to the extent of the Work to be performed by the Subcontractor, to be bound to [DOC] by the terms of the Contract Documents, and to assume toward [DOC] all the obligations and responsibilities which [DOC], by the Contract Documents, assumes toward DCAM."
2. The subcontract. DOC subcontracted with GMC to complete all heating, ventilation, and air conditioning (HVAC) work on the Project. Pursuant to the subcontract, GMC was bound to DOC by the terms of the general contract and "assume[d] to [DOC] all the obligations and responsibilities that [DOC] by those documents assumes to [DCAM], except to the extent that provisions contained herein are by their terms or by law applicable only to [DOC]."
As required by the general contract and the subcontract, GMC obtained commercial general liability (CGL) and umbrella liability insurance policies from Peerless that named DOC as an additional insured
"only with respect to liability for 'bodily injury' [or] 'property damage' . . . caused, in whole or in part, by: 1. [GMC's] acts or omissions; or 2. The acts or omissions of those acting on [GMC's] behalf; in the performance of [GMC's] ongoing operations for [DOC] that are the subject of the written contract or agreement[.]"The insurance did not apply to bodily injury or property damage "arising from the sole negligence of [DOC]." The umbrella policy provided excess coverage "not . . . broader than the coverage afforded by" the GCL policy.
3. The accident. Vincent Leahy was a GMC employee working on the Project. On June 15, 2010, Leahy was doing sheet metal work when the coffee truck came, signaling break time. Leahy exited the building and sat on a nearby pallet. He observed a scissor lift around the corner from where he was sitting being used by employees of Lighthouse Masonry, Inc. (Lighthouse), to adjust a limestone panel on the facade of the Project. There was no barricade around the scissor lift. At some point while he was sitting on the pallet, Leahy heard someone yell. He looked up and was overcome with pain. A limestone panel which had been installed on another date had fallen and shattered near Leahy, crushing his legs and arm and causing serious and permanent injuries.
4. The litigation. Leahy brought an action for damages against DOC, Lighthouse, and other subcontractors on the Project. DOC filed a third-party complaint against GMC and Peerless, alleging that GMC and Peerless had a duty to defend and indemnify DOC in Leahy's suit because DOC was an additional insured under GMC's insurance policies. DOC alleged that it was entitled to indemnity because Leahy's damages "arose out of or resulted from the performance of GMC's Work under the [subcontract] and were caused, in whole or in part, by GMC."
GMC was not named. See G. L. c. 152, § 23.
The complaint also named National Fire Insurance Company of Hartford and Navigators Insurance Company, which issued GCL and umbrella liability policies to Lighthouse. They are not parties to this appeal.
DOC also alleged that GMC and Peerless were in breach of contract for their refusal to defend or indemnify DOC.
In December, 2012, the defendants to Leahy's personal injury action petitioned the court for approval of a settlement of Leahy's claims under G. L. c. 152, § 15. "Lighthouse . . . agreed to pay the full value of the case on behalf of Lighthouse and DOC."
GMC and Peerless then moved for summary judgment on DOC's third-party complaint, arguing that their contractual duty to indemnify DOC had not been triggered and that DOC suffered no injury because Lighthouse settled Leahy's claims on DOC's behalf. A judge of the Superior Court held that GMC is not liable as a matter of law to indemnify DOC "because Leahy's injuries were not caused by GMC, which had nothing to do with the faulty installation of the panel that fell." The judge concluded that Peerless was not required to indemnify DOC "because Leahy's injuries were not caused by any act or omission by GMC," and because the umbrella liability policy does not cover liabilities outside the scope of the CGL policy.
Discussion. We review a grant of summary judgment de novo, Miller v. Cotter, 448 Mass. 671, 676 (2007), looking to the summary judgment record to determine "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).
DOC seeks indemnity from GMC pursuant to the general contract and the subcontract. See Decker v. Black & Decker Mfg. Co., 389 Mass. 35, 37 (1983), citing Liberty Mut. Ins. Co. v. Westerlind, 374 Mass. 524 (1978) (holding that "any right of a third-party tortfeasor to recover indemnity from an employer who has paid workmen's compensation benefits to an injured employee, must stem . . . from an express or implied contract of indemnity or from an obligation implied from the relationship of the parties"). The subcontract required GMC to "assume to [DOC] all the obligations and responsibilities that [DOC] by [the general contract] assumes to the [DCAM]," including a duty to indemnify "from and against all claims, damages, losses and expenses . . . arising out of or resulting from the performance of the Work, including . . . any act, omission, or neglect of [DOC]'s Personnel." However, indemnity under the general contract is limited "[t]o the fullest extent permitted by law," and indemnity under the subcontract is limited by "the extent that provisions contained herein are by their terms or by law applicable only to [DOC]." By law, subcontractors may not be required "to indemnify any party for injury to persons . . . not caused by the subcontractor or its employees, agents or subcontractors." G. L. c. 149, § 29C, as appearing in St. 1986, c. 557, § 135. Accordingly, the duty to indemnify DCAM or DOC for the acts, omissions, or negligence of DOC is not applicable to GMC.
DOC seeks to avoid this result by arguing that Leahy's injuries were caused by GMC's acts or omissions. However, it is undisputed that DOC was the general contractor. As such, DOC retained "overall responsibility" to protect the health and safety of those working on the Project, 454 Code Mass. Regs. § 10.03(9) (1993). DOC was responsible under the general contract for coordinating the operations of all subcontractors engaged in the work and was required to "take all reasonable precautions for the safety of, and the prevention of injury or damage to . . . contractors on the Work" by "post[ing] and maintain[ing] adequate danger signs and other warnings against hazards," "provid[ing] barricades, temporary fences, and covered walkways required by prudent construction practices," and "tak[ing] prompt action to correct any dangerous or hazardous conditions." It is undisputed that no barricades were erected around the area wherein limestone panels were being installed, that the panel that fell on Leahy had been reaffixed days earlier after a DOC employee notified the Lighthouse employee installing the panels that it was loose, that DOC was required under the general contract to "insure the adequate strength and safety of all . . . bracing and tying," and that DOC was solely responsible for inspecting work already completed to ensure it was in proper condition to receive more work. "In such a situation," where DOC "fail[ed] to prevent [Lighthouse] from doing even the details of the work in a way unreasonably dangerous to others, [where DOC] kn[ew] or by the exercise of reasonable care should [have] know[n] that the subcontractors' work is being so done, and ha[d] the opportunity to prevent it by exercising the power of control which [DOC] retained in [it]self[,]" DOC, as the principal contractor, is subject to liability. Corsetti v. Stone Co., 396 Mass. 1, 10 (1985), quoting from Restatement (Second) of Torts § 414 comment b (1965). GMC assumed DOC's duties under the general contract only "to the extent of the Work to be performed by the Subcontractor," and it is undisputed that GMC was retained to perform HVAC work and not to install the limestone panels. GMC therefore had no obligation to ensure that previously installed limestone panels were in the proper condition to receive more work. It had no obligation to ensure that the area surrounding installation of the limestone panels was properly barricaded, it was not required to take action to correct the loose limestone, and its acts or omissions (if any) had nothing to do with the panel falling on Leahy.
DOC correctly argues that GMC had a duty under § 14 of the general contract to protect the lives, health, and safety of its workers and to "[e]nsure that no laborer or mechanic shall be required to work in surroundings or under working conditions which are" hazardous or dangerous. However, it is undisputed that DOC remained responsible under the general contract "for its Subcontractors' compliance with the provisions of this Section 14."
The same Lighthouse worker testified that he may have bumped the panel that had been reaffixed while adjusting a different panel that he was installing, causing the panel that previously had been loose to fall on Leahy.
The parties' dispute over the safety of the area in which Leahy took his break does not preclude summary judgment because, contrary to the assertions of DOC, GMC had no duty to ensure that Leahy took his break in a safe place. Neither the general contract nor the subcontract imposed any such duty on GMC, and DOC does not argue any infirmity in the execution of these contracts. The contracts therefore express the whole intent of the parties, Hess Oil & Chem. Corp. v. Ristuccia, 3 Mass. App. Ct. 772, 772 (1975), and the testimony of DOC's representative that he told GMC that it was required to provide a "refuge space" for its employees could not establish a duty that was not expressed in the contracts. See Winchester Gables, Inc. v. Host Marriott Corp., 70 Mass. App. Ct. 585, 592 (2007) (upholding exclusion of parol evidence that "would impermissibly broaden the integrated writing"). DOC did not allege that GMC was in breach of contract for failing to provide a "refuge space," and even if DOC intended to impose such a duty on GMC, "[t]he unexpressed intent of one party cannot control the legal effect of that which was done." Quirk v. Smith, 268 Mass. 536, 543 (1929). In any event, the representative upon whose testimony DOC relies testified only that provision of a "refuge space" "was something [DOC] discussed with [GMC] after the incident," and that he couldn't "recall that [DOC] specifically told anybody where they had to take breaks."
"Indemnity . . . allows someone who is without fault, compelled by operation of law to defend himself against the wrongful act of another, to recover from the wrongdoer the entire amount of his loss . . . ." Elias v. Unisys Corp., 410 Mass. 479, 482 (1991). The undisputed facts in this case demonstrate that DOC is not without fault for Leahy's injuries, and it is well settled that "indemnity is permitted only when the would-be indemnitee does not join in the negligent act." Decker v. Black & Decker Mfg. Co., 389 Mass. at 40. DOC stipulated to its liability in settling Leahy's claims, and it is not entitled to indemnification from GMC as a matter of law. As such, the indemnification provisions of the Peerless GCL and umbrella policies were not triggered, and summary judgment properly entered.
We need not address DOC's alternative argument, that GMC is responsible for Leahy's injuries because it failed to follow its own safety standards, because any such claim would belong to Leahy and not DOC.
Judgment affirmed.
By the Court (Grainger, Hanlon & Carhart, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 20, 2015.