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When an employee of a landscape subcontractor was injured in a crane accident he sued the project’s roofing contractor (“KJC”) and the architect, Skidmore, Owings and Merrill (“SOM”). Architect was entitled to summary judgment to enforce the indemnity clause in the prime contractor’s contract with the owner that required the contractor to indemnify the owner’s “representative” against claims arising out of the contractor’s work. Comment: This case demonstrates why it is important when reviewing indemnification clauses to carefully consider who is included in terms such as “agent, servant and representative.” It is not likely that the contractor thought the architect would be considered a “representative” of the owner that would have to be indemnified. Valdez v. Turner Construction Co, 171 A.D. 3d. 836 (NY 2019)

This was a personal injury action by a landscape subcontractor employee that was performing landscaping on a building roof. While detaching a bag of soil from a crane, the crane suddenly jerked up and this caused the bag straps to catch his hand. The individual sued the roofing contractor, and also Turner Construction who was the construction manager, and SOM who was the project architect.

The court decision addresses several issues arising under New York labor law, but the main issue we will discuss in this case note concerns a motion for summary judgment to determine indemnification responsibility. The court determined that SOM should have been granted summary judgment to enforce the roofing contractor’s indemnification obligation because SOM was the owner’s “representative” within the meaning of the indemnification clause.

The court explained that, “[Contractor’s] contract with [owner] obligated [contractor] to indemnify, inter alia, the owner’s representative, construction manager, and servants.” According to deposition testimony cited by the court, SOM’s had “broad responsibility for architectural, engineering, and construction management services….” “Even though Skidmore contracted with Turner to perform construction management services, Skidmore retained the responsibility of overseeing contractor’s compliance with the design drawings and specifications and quality control on behalf of DASNY. Turner and Skidmore, therefore established that Skidmore was the owner’s representative with the meaning of [the] contract.”

The court concluded, “This evidence, along with the evidence that the plaintiff’s injuries arose out of KJC’s work and that Skidmore was free from negligence, demonstrated Skidmore’s prima facie entitlement to contractual indemnification under KJC’s contract.”

 

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. 8 (Sep 2019).

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