Collins v. Kiewit Const. Co., 94-P-1525

• Court: Appeals Court of Massachusetts
• Writing for the Court: JACOBS
• Citation: 40 Mass.App.Ct. 796,667 N.E.2d 904
• Parties: Arthur W. COLLINS v. KIEWIT CONSTRUCTION CO.; N.B. Jon-Son Steel Erectors, Inc., Third-Party Defendant.
• Docket Number: No. 94-P-1525,94-P-1525
• Decision Date: 24 July 1996

Page 904

667 N.E.2d 904 40 Mass.App.Ct. 796 Arthur W. COLLINS
v.
KIEWIT CONSTRUCTION CO.; N.B. Jon-Son Steel Erectors, Inc.,
Third-Party Defendant. No. 94-P-1525. Appeals Court of Massachusetts,
Norfolk. Argued Jan. 16, 1996.
Decided July 24, 1996.

Page 905

Thomas M. Elcock (Sean J. Milano with him), Boston, for N.B. Jon-Son Steel Erectors, Inc.

Joseph H. Aronson, Boston, for Kiewit Construction Co.

Before ARMSTRONG, GILLERMAN and JACOBS, JJ.

JACOBS, Justice.

The plaintiff, Collins, an employee of N.B. Jon-Son Steel Erectors, Inc. (Jon-Son), a subcontractor, was injured at a work site where the defendant, Kiewit Construction Co. (Kiewit), was the general contractor. Temporary stairs providing access to a building were removed by Kiewit, and failing to notice their absence, Collins fell when leaving the building. After Collins sued Kiewit for negligence, Kiewit filed a third party complaint essentially seeking indemnification[40 Mass.App.Ct. 797] by Jon-Son. A bifurcated trial was held in the Superior Court with Collins's claim being tried first to a jury. The jury awarded damages to Collins after finding in answer to special questions that he and Kiewit each was negligent and that the negligence of each was a proximate cause of Collins's injury. Apportioning negligence pursuant to G.L. c. 231, § 85, the jury attributed three percent to Collins and ninety-seven percent to Kiewit. A judgment for Collins was entered for $751,750 reflecting ninety-seven percent of the total damages found by the jury.

By agreement, the third-party action was decided on the basis of the jury's findings. Acting on cross motions for summary judgment, the judge allowed that of Kiewit, thereby determining that Jon-Son was in breach of the indemnification and insurance provisions of its subcontract with Kiewit. Accordingly, he ordered Jon-Son to indemnify Kiewit for the judgment against it, and awarded attorney's fees and costs. Jon-Son appeals from the ensuing judgment in the third-party action, arguing alternatively that G.L. c. 149, § 29C, either voids the indemnification clause or should be construed to limit the indemnity obligation to that portion of negligence attributable to it. Jon-Son also claims it was not in breach of its insurance obligation. We affirm. ¹

1. Validity of indemnity clause. We first look to the language of the indemnity clause. See Harnois v. Quannapowitt Dev., Inc., 35 Mass.App.Ct. 286, 288, 619 N.E.2d 351 (1993); Callahan v. A.J. Welch Equip. Corp., 36 Mass.App.Ct. 608, 611, 634 N.E.2d 134 (1994). That clause, as set forth in the margin, ² is enforceable [40 Mass.App.Ct. 798] under G.L.

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c. 149, § 29C, ³ because it "limit[s] the subcontractor's obligation to indemnify to cases in which there is a causal connection between the subcontractor's work and the injury." M. DeMatteo Constr. Co. v. A.C. Dellovade, Inc., 39 Mass.App.Ct. 1, 3, 652 N.E.2d 635 (1995). See also Harnois v. Quannapowitt Dev., Inc., 35 Mass.App.Ct. at 288-289, 619 N.E.2d 351; Callahan v. A.J. Welch Equip. Corp., 36 Mass.App.Ct. at 611-612, 634 N.E.2d 134. It is not affected by G.L. c. 152, § 23, releasing an employer from all common law claims of an employee. See Whittle v. Pagani Bros. Constr. Co., 383 Mass. 796, 799-800, 422 N.E.2d 779 (1981).

2. Application of indemnity clause. The indemnity clause plainly states that Jon-Son was responsible to indemnify for "injur[y] ... on account of acts or omissions of ... any of its ... employees." Accordingly, any degree of negligence on Collins's part, which the jury determined to be "a proximate cause" of his indivisible injury, brings Jon-Son within the terms of that provision. It was agreed at trial that Kiewit's claim for indemnification was not based on the negligence of any Jon-Son employee other than Collins. We do not, as did the trial judge, rely on any common law imputation of Collins's negligence to Jon-Son but rather on Jon-Son's contractual undertaking. ⁴ On its face, the clause does not limit indemnification where the negligence of the indemnified party also is a cause of that injury. Compare Kelly v. Dimeo, Inc., 31 Mass.App.Ct. 626, 627, 629-630, 581 N.E.2d 1316 (1991), involving a generally similar indemnity provision in similar circumstances arising prior to the enactment of G.L. c. 149, § 29C. The only contractual limitation is for an...