Doloughty v. Blanchard Const. Co.

• Decision Date: 07 January 1976
• Citation: 139 N.J.Super. 110,352 A.2d 613
• Parties: Edward DOLOUGHTY and Diane Doloughty, his wife, Plaintiffs, v. BLANCHARD CONSTRUCTION COMPANY et al., Defendants.
• Court: New Jersey Superior Court

Page 110

139 N.J.Super. 110

352 A.2d 613

Edward DOLOUGHTY and Diane Doloughty, his wife, Plaintiffs, v. BLANCHARD CONSTRUCTION COMPANY et al., Defendants.

Superior Court of New Jersey Law Division.

Jan. 7, 1976.

William C. Colacino, Jr., Hackensack, for plaintiffs (Breslin & Breslin, Hackensack, attorneys).

George J. Kenny, Newark, for defendant Blanchard Const. Co. (McElroy, Connell, Foley & Geiser, Newark, attorneys).

Murray R. Miller, Hackensack, for defendant Pavarini Const. Co. (Bennett & Bennett, Hackensack, attorneys).

Kevin M. O'Hallorn, Hackensack, for defendant New Jersey Bank (Morrison & Griggs, Hackensack, attorneys).

PRESSLER, J.C.C., Temporarily Assigned.

This summary judgment motion requires determination of the scope of the indemnity clause of a contract between the general contractor of a building construction project and a subcontractor, by which the subcontractor undertook to save the general contractor harmless in respect of his, the subcontractor's, own acts or omissions. The specific question raised is whether and, if so, to what extent the general contractor may be barred from enforcing that indemnity provision where his negligence is concurrent with that of the subcontractor in causing the injury complained of.

The undisputed facts, as they appear from the pleadings, stipulations and depositions, may be simply stated. Defendant New Jersey Bank (bank), the owner of premises in West Paterson, New Jersey, had contracted with the defendant Blanchard Construction Co. (Blanchard) as general contractor for the construction of a new ten-story bank building in West Paterson. The concrete subcontract was let by Blanchard to defendant Pavarini Construction Co. (Pavarini), which retained responsibility for constructing the concrete columns, subcontracting the concrete floor construction to Ceco Corporation. Plaintiff Edward Doloughty, an employee of Ceco, was responsible for levelling the floor decks preparatory to the pouring of concrete. Doloughty, having been instructed by his own foreman to help the Pavarini employees when necessary to expedite his own work, was injured when he fell from the unenclosed, partially completed third-floor deck onto a concrete balcony below while attempting to assist a Pavarini employee in straightening a vertical concrete column erected almost at the edge of the deck. He brought this negligence action against the Bank, ¹ Blanchard and Pavarini, claiming that each of them failed to provide him with a safe place to work by having failed to have provided guardrails and other necessary protections around the open exterior perimeter of the building during the progress of the work. It is conceded by defendants that no such protective devices had in fact been furnished. Blanchard crossclaimed against Pavarini, asserting, alternatively a right to contribution and a right to indemnification, ² and brings this pretrial motion for a summary judgment against Pavarini seeking an adjudication, as a matter of law, of Pavarini's obligation under the contractual indemnity provision to assume both its defense to this action and responsibility to pay any judgment which plaintiff might recover against it.

As a matter of well-settled legal doctrine, it is clear that an indemnity provision is to be construed in accordance with the rules for the construction of contracts generally, and hence that the judicial task is to ascertain the intention of the parties from the language used, the surrounding circumstances and the objects sought to be attained by the parties under their agreement. It is also a well-settled principle in this jurisdiction that there is no essential public policy impediment to an indemnitor undertaking to indemnify the indemnitee in respect of the indemnitee's own negligence. That principle derives from the judicial recognition that ordinarily the financial responsibility for the risk of injury during the course of a construction project is shifted in any event by the primary parties to their insurance carriers and the parties ought therefore to be free to determine how the insurance burdens will be distributed between them and who will pay for specific coverage for specific risks. The impact of the indemnity agreement between owner and contractor and contractor and subcontractor is therefore, in practical effect, the parties' allocation between themselves of the total required insurance protection for the project.

The first question, then, is whether it can be fairly concluded from the relevant indicia that the parties contemplated that the indemnitee would be indemnified where by reason of his own negligence he is either solely or concurrently responsible for the injury. See generally, George M. Brewster & Son v. Catalytic Constr. Co., 17 N.J. 20, 32--33, 109 A.2d 805 (1954); Longi v. Raymond-Commerce Corp., 34 N.J.Super. 593, 603--604, 113 A.2d 69 (App.Div.1955); Stern v. Larocca, 49 N.J.Super. 496, 501--508, 140 A.2d 403 (App.Div.1958); Cozzi v. Owens Corning Fiber Glass Corp., 63 N.J.Super. 117, 121--125, 164 A.2d 69 (App.Div.1960); Polit v. Curtiss Wright Corp., 64 N.J.Super. 437, 442, 166 A.2d 387 (App.Div.1960); Buscaglia v. Owens-Corning Fiberglas, 68 N.J.Super. 508, 515, 172 A.2d 703 (App.Div.1961), aff'd 36 N.J. 532, 178 A.2d 208 (1962); Mayer v. Fairlawn Jewish Center, 38 N.J. 549, 559--560, 186 A.2d 274 (1962); Bethlehem Steel Corp. v. K.L.O. Weld. Erectors, 132 N.J.Super. 496, 499, 334 A.2d 346 (App.Div.1975).

First resort in making that determination must be, of course, to the applicable contractual provisions themselves. An analysis of the recent case law, both in this and other jurisdictions, indicates that indemnity provisions in construction contracts are generally of one of two types. The first of these is a broad undertaking by an indemnitor to indemnify the indemnitee in respect of any damage or injury which occurs during or in connection with or as a result of the indemnitor's performance of the contracted work. Such undertakings are usually construed, consistent with what appears to be the intent of the parties, as imposing the exclusive obligation upon the indemnitor both to defend and to respond in damages irrespective of fault and irrespective of the absence of an express undertaking to indemnify the indemnitee for his own negligence. The criterion for determining the applicability of this type of indemnity clause is thus, in essence, work-relatedness without reference at all to the potential or actual commonlaw liability of either the indemnitor or the indemnitee to the claimant. Such an indemnity clause may, therefore, be relied upon by the indemnitee even if he is solely negligent and, a Fortiori, if he is concurrently negligent. Typical lanuage which has been judicially determined to express this broad, work-related indemnity agreement includes such phrases as all risk of loss, damage or injury 'from any action or operation under the contract or in connection with the work' (Polit v. Curtiss Wright Corp., supra 64 N.J.Super. at 441, 166 A.2d at 390); 'all loss or damages from accidents which may occur to any person or persons, by or on account of the prosecution of the work' (Stern v. Larocca, supra 49 N.J.Super. at 498, 140 A.2d at 409); 'arising from accidents to the Contractor, his agents or employees, whether occasioned by said Contractor or his employees or by Owner or his employees or any other person' (Cozzi v. Owens Corning Fiber Glass Corp., supra at 63 N.J.Super. 122, 164 A.2d at 70); 'all liability claims * * * arising from accidents to persons or property occasioned by * * * (contractor)' (Buscaglia v. Owens-Corning Fiberglas, supra, 68 N.J.Super. at 513, 172 A.2d at 706). See also, in accord, Graver Tank & Mfg. Co. v. Fluor Corp. Ltd., 4 Ariz.App. 476, 421 P.2d 909 (Ct.App.1967) (loss or damage 'arising out of the services, labor, equipment and materials furnished' and claimed 'in connection with or arising out of the performance of (the) work'); Harpeth Valley Utilities Dist. v. Due, 225 Tenn. 181, 465 S.W.2d 353 (Sup.Ct.1971) ('arising out of the work undertaken by the Subcontractor, its employees, agents or its subcontractors, and arising out of any other operation no matter by whom performed * * *'). And see generally, 143 A.L.R. 312 (1943); 27 A.L.R.3d 663 (1969).

The second type of indemnity provision is one which is limited to risk of loss or damage resulting from the negligence or fault of the indemnitor. That limitation is ordinarily expressed not only by a specific reference to the indemnitor's fault or negligence, but also by reference to loss or damage arising from the indemnitor's 'acts or omissions.' While that language does not appear to have been construed in this context in New Jersey, ³ it is generally construed in other jurisdictions as necessarily and inevitably implying a Negligent act or omission, since the phrase 'act or omission' in ordinary legal usage bespeaks culpability and if the concept of fault were not intended to have been implied, the parties could easily have opted for a form of expression which is not customarily fault-oriented. See, E.g., Salemi v. Duffy Constr. Corp., Ohio App., 31 Ohio Opin.2d 482, 197 N.E.2d 397, 401 (Ct.App.1964), rev'd on other grounds 3 Ohio St.2d 169, 209 N.E.2d 566 (Sup.Ct.1965), Cert. den. 383 U.S. 927, 86 S.Ct. 933, 15 L.Ed.2d 847 (1966), the court there noting the availability, had the parties otherwise intended, of such language as 'arising out of the performance' of the work. And see, Seaboldt v. Pennsylvania R. Co., 290 F.2d 296 (3 Cir. 1961); Pennsylvania R. Co. v. Stauffer Chemical Co., 255 A.2d 696 (Del.Super.Ct.1969). And see cases collected in Annotation, 27 A.L.R.3d, supra, at 746 to 750.

The indemnity agreement here is clearly of the second and more restrictive type, reading as follows:

It is understood and agreed that by the acceptance of this order Subcontractor hereby assumes the entire responsibility and liability for...