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A fire marshal was injured while conducting an inspection at an office building under construction. In suing the building owner, he alleged he tripped on a pile of construction debris. The owner filed an indemnity claim against its fire sprinkler contractor (“STT”) and a third-party action against the general contractor (GC) who then asserted an indemnification claim against STAT as well. STAT moved for summary judgment on the indemnity claims on the basis that the owner and GC couldn’t prove themselves free of negligence. Held: the motion should have been granted. Fedrich v. Granite Building, 86 N.Y.S.3d 566 (NY, 2018).

On appeal, the court held the motions should have been granted as to contractual and common-law indemnification because the Indemnitees themselves had certain responsibilities with regard to removal of the construction debris.  Based on evidence submitted, the Indemnitees would not be able to prove themselves free from negligence in the event that the injured plaintiff was successful in his claims against the owner.     The court explained:

“Here, the indemnification provision in the contract between Granite and STAT required STAT to indemnify Granite and Kulka “from and against all claims, demands, suits, [and] damages . . . arising out of or resulting from the performance of the Work, provided that such claims, demands, suits, [and] damages . . . are caused in whole or in part by negligent acts or omissions of [STAT].” The court concluded that: “STAT demonstrated its prima facie entitlement to judgment as a matter of law dismissing Grantie’s contractual indemnification third third-party cause of action and Kulka’s contractual indemnification cross claim against STAT by submitting evidence that, during the course of the construction, the trade contractors were piling their debris on the floor of the subject building, which was then removed by laborers employed by and/or under the supervision of Granite and Kulka. STAT demonstrated that Granite and Kulka had certain responsibilities with respect to the removal of the construction debris and, thus, that they would not be able to prove themselves free from negligence in the event that the injured plaintiff was successful on his claims against Granite.”

 

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 ConstructionRisk 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. 21, No. 2 (June 2019).

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