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In a wrongful death action brought by the estate of an electrician against a project owner and its architect, the owner made a cross claim for indemnification and contribution against the Architect.  That claim was dismissed pursuant to a motion for summary judgment, with the motion’s judge finding that the terms of the contract between the owner and architect precluded indemnification under the circumstances.  This was reversed on appeal, with the appellate court holding that there was a genuine issue of actual negligence by the architect such that the architect could owe a duty to indemnify the liability the owner suffered as a result of negligent acts, errors and omissions of the architect.  The court focused on the duties of the architect under the contract to visit the site and provide the owner with reports of work progress and competence, including deficiencies or deviations from contractual requirements.  Although the architect did not have authority or responsibility for control and command over the contractor and subcontractors; the court found the architect had “abundant duties to the project owner … of observation and notification of the quantity and quality of the work.”  The court concluded that “the failure to monitor and to report any deficiency to Hilton constituted a contractual breach and created a field of risk for third parties likely to come into contact with the [electric] switchgear.  Therefore, the failure of [the architect] to notify Hilton of [the electrical contractor’s] failure to install the warning signage … creates a genuine issue of casual negligence for a trial.”  LeBlanc v. Logan Hilton Joint Venture, 942 N.E. 2d 970 (Mass. 2011).

In this case, a maintenance electrician employed by the Massachusetts Port Authority was electrocuted as he began work on transmission equipment at the Hilton Hotel at Logan International Airport in Boston.  Critical diagrams and script necessary to warn workers of potentially lethal flow of electricity through the equipment were lacking.   Pursuant to the Owner-Architect Agreement, the architect had a range of construction phase duties.  Among the most significant to the court was the requirement that the architect find, and inform, the owner, with supporting documentation, that the general contractor had achieved compliance with the construction contract.   An indemnification clause in the contract, according to the court, required the architect to “indemnify Hilton against all financial losses caused by negligent acts, errors, or omissions committed in the course of its contractual professional services or those of its consultants.”

Specifications by the architect addressed the warning signage required for the electrical switchgear.  The architect’s subconsultant forwarded a deficiency report to the electrical contractor that included an items stating that signs should be installed.  During a subsequent field observation, the subconsultant observed several deficiencies had not been corrected, one of which was that the switchgear still had no signage.  He sent a report to the architect itemizing certain deficiencies but made no mention of the absence of switchgear warning signage.   The signage was never installed prior to the state employee putting his had into the open switchgear box and being electrocuted.   The decedent’s estate sued Hilton, the architect, the subconsultants and others for negligence, gross negligence, and breach of warranty.

On the motions concerning indemnification, the motion’s judge concluded that the architectural parties were immune from liability for contribution to any of their codefendants as a matter of law because they had no direct liability to the electrician.  In the absence of the potential for direct liability to the plaintiff there can be no liability to codefendants on a contribution theory.  This part of the decision was reversed on appeal – with the court stating that under Massachusetts decisions, a defendant performing contractual duties “is liable to third persons not parties to the contract who are foreseeably exposed to danger and injured as a result of its negligent failure to carry out [a contractual] obligation.”

On the question of whether the architect could be required to indemnify Hilton, the court held summary judgment against indemnification of Hilton had incorrectly granted for the reasons stated at the outset of this case note.  On a separate issue of whether the electrical contractor company (Broadway Electrical) that installed the switchgear without the warning signage could seek indemnification from the architect, the court found there could be no indemnification because that company participated in the negligent acts and omissions that are alleged to have caused the injuries. The architect had on two occasions furnished Broadway with instructions to install the warning signage.  “No causal negligence by the architectural parties supports any claim of Broadway Electrical for indemnity.”

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 13, No.8 (Aug 2011).

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