Chamberlain v. Guardian Serv. Indus., Inc.
| Decision Date | 01 July 2014 |
| Docket Number | Third-party Index No.: 590192/2013,Motion Seq. No. 001,Index No.: 590331/2010 |
| Citation | 2014 NY Slip Op 31724 (U) |
| Parties | ROBERT CHAMBERLAIN, Plaintiff, v. GUARDIAN SERVICE INDUSTRIES, INC., Defendant. GUARDIAN SERVICE INDUSTRIES, INC., Third-party Plaintiff, v. MORETRENCH AMERICAN CORPORATION, Third-party Defendant. |
| Court | New York Supreme Court |
MEMORANDUM DECISION
This action arises out of an incident in which plaintiff, Robert Chamberlain ("plaintiff") fell from a beam on which he was standing while working at the World Trade Center ("WTC") construction site.
Plaintiff alleges that the Port Authority of New York and New Jersey (the "Port Authority"), as owner, retained Phoenix Constructors Joint Venture ("Phoenix Constructors") as general contractor, concerning work at the WTC site. Phoenix retained Skanska Mechanical Services ("Skanska"), the injured plaintiff's employer, to erect steel.
Guardian Service Industries, Inc. ("Guardian") was retained to perform dewatering services at the site; said subcontract contained additional insured and defense andindemnification requirements in favor of the Port Authority. Guardian, in turn, sub-subcontracted the work to Moretrench American Corporation ("Moretrench"); said sub-subcontract contained similar additional insured and defense and indemnification requirements in favor of the Port Authority.
According to plaintiff, on the date of the accident, he and his co-workers were installing steel beams. While standing on a beam, another beam being lifted by a crane swung towards him. In attempting to avoid being hit, he slipped on the beam and fell to the ground six feet below.
Thus, plaintiff commenced this action under Labor Law 200, 240(1), and 241(6) against defendants Port Authority and Phoenix.
On March 4, 2010, this Court granted summary judgment against the Port Authority and Phoenix Constructors pursuant to Labor Law 240(1) and 241(6) ().
Thereafter, on April 19, 2010, the Port Authority commenced a third-party action against Guardian for (1) contractual and common law indemnification, (2) apportionment of damages based on, inter alia, breach of duty, negligence, and culpable conduct, (3) breach of contract for failure to name the Port Authority as an additional insured and (4) contribution.
The Port Authority and Phoenix Constructors then settled plaintiff's action, and the main action was severed.
Guardian then commenced a second third-party action against Moretrench for (1) common law indemnification and contribution, (2) contractual indemnification, and (3) breach ofcontract for failure to procure insurance.1
Moretrench now moves for summary judgment dismissing Guardian's second third-party complaint, and the Port Authority's third-party complaint.
Moretrench argues that given the Port Authority's settlement with the injured plaintiff, the third-party action is barred by General Obligations Law ("GOL") 15-108( c ), which bars a contribution claim by a tortfeasor who has obtained its own release from liability, such as the Port Authority herein.
And, in light of the Court's determination that the Port Authority was liable to plaintiff under Labor Law 240(1) and 241(6) in failing to provide a lifeline to prevent the injured plaintiff's fall, the Port Authority cannot pass on its liability to either Moretrench or Guardian, who bore no responsibility for providing proper safety or protective devices to plaintiff, or regarding the hoisting of the beams. Since the Port Authority was found liable under 241(6), which is some evidence of negligence, it is barred from seeking contractual and common law indemnification, which requires a showing of freedom from one's own negligence. And, the contractual indemnification claims fail because the Port Authority's contract with Guardian did not involve any services related to providing safety devices or hoisting beams at the site. Nor did Guardian undertake to provide such services. Likewise, Guardian's unexecuted contract with Moretrench was not in effect at the time of the underlying accident, and in any event, involved the provision of maintenance and basic electrical, plumbing, and carpentry services did not involve the provision of safety devices or hoisting beams. Lastly, the Port Authority hasinsurance coverage (through Lloyd's and any excess carriers), which paid the settlement. Thus the Port Authority did not sustain any damages to support any breach of contract claim. Therefore, both third-party actions should be dismissed.
Similarly, Guardian cross moves for summary judgment dismissing the Port Authority's third-party complaint, or in the alternative, denying Moretrench's motion to dismiss Guardian's second third-party complaint. Guardian adopts Moretrench's arguments, and adds that it was only contracted to keep water levels below two inches and to keep water levels at the below sea level construction site under two inches, not completely dry. Nothing indicates that it had any bearing on the accident. And, the Port Authority's claim that plaintiff slipped off the beam due to water is insufficient.
Guardian also adds that discovery is necessary regarding its contract with Moretrench. The contract, which was formalized in July 2010, was backdated to February 1, 2007, which was the time the Port Authority requested it to use Moretrench's services. Even though the contract is unsigned, it may still be enforceable. Moretrench performed all de-watering services at the site, and Guardian is entitled to common law indemnification from Moretrench if Moretrench was someway responsible for plaintiff's accident. Since documents regarding Moretrench's activities at the site and proof of insurance naming Guardian as an additional insured are in the possession of Moretrench, and have yet to be exchanged, summary judgment in Moretrench's favor is premature. Therefore, if the Court denies dismissal of the Port Authority's complaint, Moretrench's motion to dismiss Guardian's third-party complaint should likewise be denied.
In opposition, the Port Authority argues that there is evidence of its lack of fault, and that no one complained to the Port Authority about any water condition. There is evidence thatplaintiff's fall was due to water in the area, plaintiff complained about "a lot of flooding problems," and water "over the whole surface we were working on," and that plaintiff's feet slipped because they had been wading around in the water. Therefore, there is evidence that Guardian and Moretrench's breach of their dewatering obligations caused plaintiff's accident. The Court's order granting plaintiff summary judgment was not based on any active negligence of the Port Authority, but on passive, statutory violations of the Labor Law.
Both motions should be denied because neither defendants supplied an affidavit from anyone with knowledge of their dewatering activities at the site. And, neither produced anyone for depositions.
Since the Port Authority was not negligent, as it had no notice of the water conditions and did not control the means or methods of plaintiff's work, it may pursue its contractual indemnification claim. And, the negligence under 241(6) was completely vicarious. The failure of both defendants to perform their dewatering obligations contributed to the happening of the accident, which triggered their contractual and common law indemnity obligations.
And, the Port Authority can maintain its claim for breach of failure to name it as an additional insured. Neither defendant showed their compliance with their contractual obligations. Further, the Port Authority is entitled to recover all out-of-pocket damages caused by defendants' breach, including the purchase cost of the insurance the Port Authority procured for itself, premiums, deductibles, co-payments, and increased future premiums. Thus, that the Port Authority maintained its own insurance does not absolve the defendants from their obligations. Indeed, as it is undisputed that defendants breached their obligation to name the Port Authority as an additional insured on their policies, the Court should award the Port Authoritysummary judgment and order an inquest on damages.
In reply, Guardian adds that the only issue is whether the Port Authority was negligent and whether Guardian's work was connected to plaintiff's accident; if the accident was not related to Guardian's work, then summary judgment should be granted. And, plaintiff's boots would have been wet whether or not a dewatering contract between Guardian and the Port Authority existed, since Guardian was only responsible for keep water levels at the below sea level construction site under two inches, not completely dry. Further, even if the Port Authority was not actively negligent, there is no evidence that Guardian was a substantial factor in bringing about plaintiff's accident, in light of the fact that it did not contract to provide a bone dry site. And, the Port Authority's request in opposition for summary judgment on its breach of contract claim is procedurally defective, and cannot be granted in any event due to outstanding discovery needed to oppose such relief.
Moretrench also replies, adding that additional discovery is unnecessary since the alleged improper dewatering was not a proximate cause of the accident. Therefore, no common law indemnification claim can be maintained. Guardian provides no evidence that Moretrench was responsible for the safety devices for the plaintiff or the hoisting of beams. And, since contractual indemnification is limited to claims arising out of Moretrench's services, and the Court already held that the alleged water conditions at the site were irrelevant, Guardian is not entitled to contractual indemnification against Moretrench based on the purported...
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