Opinion
No. 04 Civ. 2077 (LAK).
July 21, 2005.
Michael Flynn, LAW OFFICES OF MICHAEL FLYNN, PLLC, Attorney for Plaintiff.
James M. Woolsey, III, LANDMAN CORSI BALLAINE FORD PC, Attorney for Defendant, Third-Party Plaintiff.
Matthew J. Larkin, COZEN O'CONNOR, Attorney for Third-Party Defendants, Fourth-Party Plaintiff.
William Scott Matlin, HOFFMAN ROTH, LLP, Attorney for Fourth-Party Defendant.
MEMORANDUM OPINION
The plaintiff, a Metro-North employee, brings this action under FELA to recover for injuries allegedly sustained after he tripped and fell on a snow covered cable while working on a construction project on Metro-North's Harlem line. The railroad impleaded its contractor on the theory that the contractor was responsible in whole or in part for the cable and, in any event, was obliged by contract to indemnify it. The contractor in turn impleaded its electrical subcontractor on essentially the same theory. The contractor now moves for summary judgment dismissing the third-party complaint or, alternatively, for judgment as a matter of law on its fourth-party complaint against the subcontractor. The questions presented involve whether the indemnity provisions are enforceable and whether the railroad and the contractor were negligent.
45 U.S.C. § 51 et seq.
Facts
On June 25, 2001, Metro North Commuter Railroad Company ("Metro North") awarded Granite Halmar Construction Company ("Granite") a contract for the construction of a third track on the Harlem line ("Metro North Contract"). Granite entered into a subcontract with Verde Electric Corp. ("Verde") for the electrical work ("Verde Contract"). Both agreements contained indemnification provisions.
Ex. J.
Ex. K.
Metro North, Granite, and Verde worked together on the construction project. Granite dug trenches. Verde installed conduits in the trenches and, at least at the site of the accident, drew cables through the conduits into a termination box, basically a small manhole. At that point, according to Verde, its responsibility ended. Metro North ran the cables from the termination box to the signal house where it "terminated them" — i.e., apparently cut the cables previously installed by Verde to the appropriate length and attached them to the appropriate place within the signal house. Granite was responsible for back filling the trenches.
Ex. P (Dep. of Granite by Todd) at 16.
Ex. Q (Dep. of Verde by Koferl) at 12.
Id. at 17-18.
Id. at 15.
Id. at 18.
Id. at 16.
Id.
What exactly occurred at mile 14.4 on the Harlem line, the site of the accident, is somewhat unclear. Verde installed cables in the summer of 2002, leaving sufficient cable to reach the signal house from the termination box, a distance now known to be about twenty feet. As this distance was unknown at the time of installation, however, Verde left around 75 to 100 feet of extra cable as instructed by "the inspection company, URS." This was so bulky that it did not fit in the termination box. Accordingly, Verde ran the slack along the railroad track and "barricaded" it for future use by Metro North.
Id. at 52.
Id. at 42-43, 45.
Id. at 46-47.
Id. at 46.
Id. at 42-44.
Id. at 44, 21-23.
On January 23, 2003, plaintiff George Martin was working on the construction project at mile 14.4 on the Harlem line. He and two co-workers ran cables, presumably installed by Verde, "up to the building" that was being built by "the contractors," presumably Granite. The cables previously "were coiled up in a hole that had been dug out beneath the house and [Martin and his co-workers] were taking the cables and bringing them into the house." They finished the job that day and Martin claims to have cleaned up the site. Granite's witness does not foreclose the possibility that Granite or Verde came to work at mile 14.4 that week, but it seems unlikely.
Ex. L (Martin Dep.) at 21.
Id. at 20.
Martin's deposition does not explain who these contractors were and the rest of the evidence is equally unhelpful in this regard.
Id. at 22.
Ex. P (Dep. of Granite by Todd) at 44, 46-50.
On January 27, 2003, Martin and Dominick Ferrante were assigned to do the same job at mile 14.7 on the Harlem line. When the two arrived at the site, they realized that they needed a piece of equipment, called a chute, that was available at mile 14.4. They drove to mile 14.4 and parked on the street. It was not snowing at the time, but the site was covered with two to three inches of fresh snow from the night before.
Ex. L (Martin Dep.) at 24.
Id. at 28-29.
Id. at 27-28.
Martin testified that he walked down the contractor's ramp, "a ramp that the contractor put in so they could drive high rail equipment down," and as he stepped off the ramp, he "stepped on a cable and . . . slipped and fell." The cable, likely that of a "contractor," had been completely hidden by snow. This testimony is substantiated by the Metro-North and Granite accident reports. Martin claims to have injured his left hand and his back as he fell onto the ramp.
Id. at 29.
Id. at 40-41. The inference can be drawn from the various depositions that the cable ends belonged to a cable installed by Verde. See Ex. Q (Dep. of Verde by Koferl) at 37-39. Unfortunately, only a couple of photographs exist of the accident site, and these are not particularly helpful. Ex. T. No evidence was offered to explain how the cables ended up on Martin's path, nor who was responsible. Granite's incident report suggests that Verde left the cable behind. Ex. R. As does Metro North's report. Ex. S. Koferl's deposition, however, is not entirely clear on this point. If anything it leads to a different conclusion. Furthermore, the accident reports are not dispositive of the issue.
Ex. L (Martin Dep.) at 31. Martin observed that a cable was to blame for his fall after getting up and once "the snow was disturbed." Id. at 34.
Ex. R, S.
Id. at 31-32.
Discussion
A. Summary Judgment StandardThe Court must grant a motion for summary judgment when the moving party shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The Supreme Court has explained that "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." In deciding whether the moving party has met its burden, a district court must draw all reasonable inferences and resolve all ambiguities against the moving party.
Fed.R.Civ.P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
B. Metro-North's Claims Against Granite
The Metro-North Contract made Granite responsible for all injuries "occurring on account of, or in connection with, the performance of the Work . . ." It obliged Granite to indemnify Metro-North "to the fullest extent permitted by law, from loss and liability upon any and all claims and expenses, . . . irrespective of whether it shall have been due in part to negligence of [Granite] . . . or the negligence of" Metro-North. Metro-North claims it is entitled to indemnity under this clause. Granite retorts that the claim must fail because Metro-North was negligent and, in the alternative, Granite was not.
Ex. J, art. 6.02.A.
Id., art. 6.03A.
1. Metro-North's Negligence
Granite begins by pointing out that New York law voids as against public policy any agreement to indemnify a promisee against liability for injury "contributed to, caused by or resulting from the negligence of the promisee . . ., whether such negligence be in whole or in part." As the clause purports to require indemnification without regard to whether Metro-North was negligent, it argues, the clause is void in light of what it describes as a holding by the New York Court of Appeals in Itri Brick Concrete Corp. v. Aetna Casualty Surety Co. that "the statute must be applied to the indemnification clause as written and cannot be applied to save the valid provisions of an otherwise void agreement." Granite, however, reads Itri too broadly.
N.Y. GEN. OBLIG. L. § 5-322.1.
Granite Br. 6, citing Itri Brick Concrete Corp. v. Aetna Cas. Sur. Co., 89 N.Y.2d 786, 658 N.Y.S.2d 903 (1997).
In Itri, the Court of Appeals dealt with the enforceability of indemnification clauses in agreements between contractors and subcontractors that purported to shift to the subcontractor full liability for all losses, including losses caused by the contractors' negligence. The Court held that these ran afoul of General Obligations Law Section 5-322.1. In the portion of its decision relied upon here, it declined to enforce the indemnification clauses only to the extent that the contractors were not negligent, holding "that the statute applies to the indemnification agreements in their entirety where, as here, the general contractor/promisee is actually found to have been negligent." Moreover, it went on to state that "[t]he question whether a negligent contractor/promisee could enforce an indemnification agreement, notwithstanding section 5-322.1, so long as the agreement did not purport to indemnify the contractor for its own negligence is not before us."
Id. at 795, 658 N.Y.S.2d at 908.
Id.
In this case, the indemnification clause contains some language suggesting that Granite would be obliged to indemnify Metro-North against the consequences of its own negligence. Unlike the contracts at issue in Itri, however, that broad language is qualified by the phrase "to the fullest extent permitted by law." As Section 5-322.1 forbids indemnification of Metro-North against the consequences of its own negligence, that phrase negates the language that otherwise would be repugnant to the statute. In consequence, the indemnification clause is not invalid on its face.
Nor may Granite's obligation to indemnify Metro-North be defeated at this early stage on the theory that the undisputed evidence establishes that Metro-North was negligent. It argues that Metro-North instructed Martin to go to mile 14.4 on January 27 and that it was negligent in doing so because the site that had not been cleared of snow. But the evidence that Metro-North sent Martin to mile 14.4 is at best equivocal. There is evidence also that Martin made the decision to do so himself. Moreover, it is far from clear that sending Martin to mile 14.4 despite the presence of a couple of inches of snow would have been a breach of duty.
2. Granite's Freedom from Negligence
Granite argues also that Metro-North's contractual indemnity claim fails because Granite had nothing to do with the cable on which Martin tripped and therefore was not negligent. Contrary to Granite's statements, the evidence does not clearly establish that Granite had nothing to do with the cables.
* * *
As the foregoing demonstrates, Granite's attack on the contractual indemnity claim fails. By parity of reason, its challenge to the common law claim fails as well.
C. Granite's Claims Against Verde
Granite moves also for summary judgment on its fourth-party complaint against Verde. It points to the Verde Contract's indemnity clause which provides that:
"To the fullest extent permitted by law, [Verde] shall indemnify, defend (with counsel reasonably satisfactory to [Granite]), and hold harmless [Metro-North] and [Granite], . . . from and against any and all suits . . . whether they may arise before, during or after the performance of [Verde]'s Work which are in any manner directly or indirectly caused, occasioned or contributed to, in whole or in part, or claimed to be caused, occasioned, or contributed to, in whole or in part, through any act, omission, fault or negligence whether active or passive of [Verde], or anyone acting under its direction, control, or on its behalf or for which its is legally responsible"
Ex. K art. 11.1.
Granite observes that the indemnity provision is enforceable so long as Granite is not negligent. As it cannot be said as a matter of law that Granite was free from negligence, however, Granite's motion for summary judgment against Verde must fail.
Brown v. Two Exchange Plaza Partners, 76 N.Y.2d 172, 556 N.Y.S.2d 991 (1990).
Conclusion
Granite's motion for summary judgment [docket item 23] is denied in all respects.
SO ORDERED.