Erland Const. Co., Inc. v. Park Steel Corp., 95-P-796

• Court: Appeals Court of Massachusetts
• Citation: 671 N.E.2d 953,41 Mass.App.Ct. 919
• Docket Number: No. 95-P-796,95-P-796
• Parties: ERLAND CONSTRUCTION CO., INC. v. PARK STEEL CORPORATION.
• Decision Date: 03 October 1996

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671 N.E.2d 953 41 Mass.App.Ct. 919 ERLAND CONSTRUCTION CO., INC.
v.
PARK STEEL CORPORATION. No. 95-P-796. Appeals Court of Massachusetts. Oct. 3, 1996.
Further Appellate Review Denied Nov. 27, 1996.

Gary D. Buseck, Boston, for plaintiff.

Gerard R. Laurence, Worcester, for defendant.

RESCRIPT.

Erland Construction Co., Inc. (Erland), a general contractor, is a third-party plaintiff that claims indemnity from Park Steel Corporation (Park Steel), a structural steel subcontractor, for liability incurred by Erland in connection with a construction job in Westborough. The controversy involves the application of G.L. c. 149, § 29C, as appearing in St.1986, c. 557, § 135, and provisions of the subcontract between Erland and Park Steel. See Miley v. Johnson & Johnson Orthopaedics, Inc., 41 Mass.App.Ct. 30, 668 N.E.2d 369 (1996), in which that statute and cases interpreting it are discussed. As in Johnson & Johnson, the phrase in § 29C on which we concentrate attention is: "not caused by the subcontractor or its employees, agents or subcontractors." Unless the evidence establishes a causal link between the liability incurred by the general contractor and something that the subcontractor, or its subcontractors, did or did not do to bring about the injury or damage, the general contractor may not be indemnified and a contractual provision purporting to do so is unenforceable. Id. at 32-33, 668 N.E.2d 369. A judge in the Superior Court determined that the indemnity provision in the contract was unlawful because it imposed indemnity obligations in the absence of a causal link. He ordered judgment for Park Steel. Erland has appealed, and we reverse the judgment.

Underlying Erland's indemnity claim against Park Steel was a successful negligence action by Gerald J. Richards and his wife against Erland and the job site owner. Richards worked for--and was the principal

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officer of--Titan Steel, Inc. (Titan), to which Park Steel let a sub-subcontract. It was in the performance of that sub-subcontract that Richards was hurt. The Richardses' claims were tried to a jury which, in response to special questions, found Erland 63% negligent, Richards 37% negligent, and Park Steel not at all negligent.

There are two provisions in the subcontract between Erland and Park Steel, Article IV and Article XIV, that treat the subject of indemnity. Article XIV, which Park Steel embraces on appeal as the operative provision, lacks language requiring a...