Dutton v. Charles Pankow Builders, Ltd.
| Decision Date | 02 July 2002 |
| Citation | 745 N.Y.S.2d 520,296 A.D.2d 321 |
| Court | New York Supreme Court — Appellate Division |
| Parties | DONALD DUTTON et al., Respondents,<BR>v.<BR>CHARLES PANKOW BUILDERS, LTD., Appellant and Third-Party Plaintiff-Respondent-Appellant.<BR>BROWNELL STEEL, INC., Third-Party Defendant-Appellant-Respondent. |
The subcontractor argues that the indemnification clause underlying the general contractor's cause of action for contractual indemnification purports to indemnify the general contractor for its own negligence, contrary to General Obligations Law § 5-322.1, and is therefore void and unenforceable even as to the subcontractor's own negligence (Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786, 795). There appears to be no dispute that plaintiffs did not sustain grave injuries within the meaning of Workers' Compensation Law § 11, and that the general contractor therefore has no cause of action against the subcontractor for contribution. Insofar as pertinent, the challenged indemnification clause provides that "to the fullest extent permitted by applicable law," the subcontractor will indemnify the general contractor for all liabilities arising out of personal injuries sustained in connection with the subcontractor's work "regardless of whether [the general contractor is] partially negligent * * * exclud[ing] only liability created by the [general contractors's] sole and exclusive negligence." We find that the clause calls for partial, not full, indemnification of the general contractor for personal injuries partially caused by its negligence, and is therefore enforceable. We reach this conclusion in view of the phrases limiting the subcontractor's obligation to that permitted by law (see, 89 NY2d at 795) and excluding liability created by the general contractor's sole and exclusive negligence. While the phrase calling for indemnification of the general contractor "regardless" of its partial negligence makes it reasonable to construe the exclusion for the general contractor's sole negligence as applying only to situations where the general contractor is found solely at fault, not like here, where the general contractor was found partially at fault, it is just as reasonable to construe the "regardless" phrase as requiring indemnification even where the general contractor is partially negligent, but excluding that portion of the joint liability attributable to its negligence. As between these two reasonable constructions of the...
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