Farren v. General Motors Corp.

• Citation: 708 F. Supp. 436
• Decision Date: 07 March 1989
• Docket Number: Civ. A. No. 86-1444-N.
• Parties: John M. FARREN, Plaintiff, v. GENERAL MOTORS CORPORATION and Giffin, Inc., Defendants and Third-Party Plaintiffs, v. GIFFIN, INC. and Automatic Systems, Inc., Third-Party Defendants and Fourth-Party Plaintiffs, v. PRIME STEEL ERECTING, INC., Fourth-Party Defendant.
• Court: U.S. District Court — District of Massachusetts

708 F. Supp. 436

John M. FARREN, Plaintiff, v. GENERAL MOTORS CORPORATION and Giffin, Inc., Defendants and Third-Party Plaintiffs, v. GIFFIN, INC. and Automatic Systems, Inc., Third-Party Defendants and Fourth-Party Plaintiffs, v. PRIME STEEL ERECTING, INC., Fourth-Party Defendant.

Civ. A. No. 86-1444-N.

United States District Court, D. Massachusetts.

March 7, 1989.

Paul Goodale, Raynham, Mass., for Farren.

John D. Curran, Boston, Mass., for Giffin and GMC.

David M. Rogers, for GMC.

Robert A. Curley, Boston, Mass., for Automatic Systems, Inc.

Robert L. Farrell and Paul Saltzman, Boston, Mass., for Prime Steel Erecting, Inc.

ORDER

March 7, 1989

DAVID S. NELSON, District Judge.

The Magistrate's Report and Recommendation are hereby adopted and ordered; therebeing no opposition thereto.

REPORT AND RECOMMENDATION RE: THIRD-PARTY DEFENDANT AUTOMATIC SYSTEMS, INC.'S MOTION FOR SUMMARY JUDGMENT

February 15, 1989

PATTI B. SARIS, United States Magistrate.

Plaintiff John M. Farren, a Massachusetts resident, filed this action for injuries suffered when he fell through an opening in a catwalk at the General Motors Corporation ("General Motors") assembly plant in Framingham, Massachusetts on November 24, 1984. The original complaint was filed in Suffolk Superior Court and alleged a cause of action for negligence against General Motors. General Motors is a Delaware corporation with a principal place of business in Detroit, Michigan.

On General Motors' petition, the action was removed to this Court on the ground of diversity of citizenship. General Motors then filed a third-party complaint against two independent contractors hired by it to do construction work at the Framingham assembly plant—Automatic Systems, Inc. ("ASI"), a Missouri corporation, and Giffin, Inc. ("Giffin"), a Michigan corporation. The third-party complaint originally alleged claims for contractual indemnity and for contribution against Giffin in Counts I and II. These counts were later dismissed on General Motors' motion because Giffin agreed to indemnify General Motors. (See Docket 93). Count III still remains and alleges a claim for contractual indemnity against ASI.

Giffin filed a fourth-party complaint, asserting claims for contribution, common law indemnity and contractual indemnity against Prime Steel Erecting, Inc. ("Prime Steel"), one of its subcontractors that allegedly was responsible for performing work on the catwalk plaintiff claims he fell through. ASI also filed crossclaims against Giffin and Prime Steel alleging that in the event it is found to be an indemnitor of General Motors, it is entitled to obtain contractual and common law indemnity from Giffin and Prime Steel, as well as contribution as subrogor of General Motors.

On June 14, 1988, this Court allowed plaintiff's motion to file an amended complaint to add Giffin as a direct defendant in the action. (Docket 93, pgs. 1-2).¹

Referred here for report and recommendation is ASI's motion for summary judgment. Plaintiff and defendant General Motors have opposed certain aspects of the motion. The Court RECOMMENDS that the motion be DENIED except in the following respect. ASI has requested partial summary judgment to the extent that since Giffin has admitted its obligation to indemnify General Motors, "the most that ASI can ever be liable to GM for indemnity would be fifty percent of GM's pro rata share of the entire liability, if any, to the Plaintiff." (Docket 84S, Brief, pgs. 15-16). Plaintiff's request has already been allowed by the Court as a condition for dismissal of General Motors' contractual indemnity count against Giffin. (Docket 93, pg. 10). Therefore, the Court recommends that in this one respect, the motion be allowed.

FACTUAL BACKGROUND²

Undisputed Facts

Farren is a millwright. (Docket 84S, Ex. A, pg. 9). In November 1984, he was hired by a division of ASI, known as MECO, Inc., to do work at the General Motors assembly plant in Framingham, Massachusetts. (Id., pgs. 49, 52; Docket 36-C, ¶ 3). At that time, renovations were being made at the plant, and for this purpose, General Motors had hired, among others, Giffin and ASI as principal contractors for the work. ASI was hired to do "the conveying work, installing conveyor components and conveyor parts." (Docket 84S, Ex. D, pg. 75). Giffin was responsible for "structural steel oven housing and heater house installation," as well as other areas of work. (Id.). Giffin's responsibilities included the construction of an oven extension and the tying in of existing catwalks with new catwalks in the area where the extension was to be built. (Id., Ex. E, pg. 34).

Both ASI and Giffin, as the Contractors, entered into separate written agreements with General Motors, as the Owner. (See id., Ex. K-L). The Contract General Conditions between ASI and General Motors provided in relevant part in paragraph 30 as follows:

Except as otherwise provided in Paragraph 40 hereof entitled "Fire and Supplemental Insurance," the Contractor assumes all risks of damages or injuries, including death, to any property or persons used or employed on or in connection with the work, and all risks of damages or injuries, including death, to any property or persons wherever located, resulting from any action, omission or operation under the Contract or in connection with the work.

The Contractor shall indemnify, hold harmless and defend the Owner, its employes (sic), agents, servants and representatives from and against any and all losses, damages, expenses, claims, suits and demands of whatever nature, resulting from damages or injuries, including death, to any property or persons, caused by or arising out of any action, omission or operation under the Contract or in connection with the work attributable to the Contractor, any Subcontractor, any Material Supplier, any of their respective employes, agents, servants and representatives, or any other person, including the Owner, its employes, agents, servants and representatives; provided, however, that the Contractor shall not be required to indemnify the Owner, its employes, agents, servants and representatives hereunder for any damages or injuries, including death, to any property or persons, caused solely and exclusively by the negligence of the Owner, its employes, agents, servants and representatives.

(Id., Ex. L, ¶ 30) (emphasis added). The Construction General Conditions between Giffin and General Motors contained the same provision, with only a few minor differences in language. (Id., Ex. K, ¶ 20).

Certain terms and conditions also accompanied General Motors' order to ASI for the purchase of "all labor, material, equipment engineering design and services necessary for the complete installation of the ... conveyors." Paragraph 14 of these terms and conditions provided: "If this order covers the performance of labor for Buyer, Seller agrees to indemnify and protect Buyer against all liability, claims or demands for injuries or damages to any person or property growing out of the performance of this order, by Seller, its servants, employes (sic), agents or representatives."

Farren began work at the General Motors plant as an employee of the ASI division three or four days prior to November 24, 1984. (Id., Ex. A, pg. 49). He had worked at the plant one other time in 1981 for a period of approximately five months. (Id., pgs. 49-50).

Farren worked the second shift from 5:00 p.m. to 3:00 a.m., and was given a 45-minute lunch break in the middle of his shift. (Id., pgs. 52-53). On the night of November 24, 1984, he began his "lunch break" by spending 15 to 20 minutes downstairs eating in the break room near where he was working. (Id., pgs. 55-56). After that, he went upstairs with a fellow worker, Bill Keating, to visit crew members who were doing work upstairs. (Id., pgs. 56-57). They used an escalator to get to the upstairs break area and did not go out on the catwalks. (Id., pgs. 66-67).

After Farren finished talking with his co-workers, he started back to his work area with Keating. (Id., pgs. 68, 83). His lunch period had ended by that time, and so he decided to take a shortcut to get back to the work area as quickly as possible. (Id., pgs. 68-69). The shortcut he decided to take was a route he thought he had taken before when he worked at the plant in 1981. (Id., pg. 71). He said: "I thought that when I went from one side of the plant to the other via the catwalk, being outside, I'd only have to go down a stairwell and walk a short distance and I'd be in the work area, where I started off that night." (Id., pg. 73).

The decision to use the catwalk was Farren's own decision. (Id., pg. 165). Farren did not ask anyone whether it was "okay" for him to walk out on the catwalk. (Id.). He had not been informed by anyone that he should not be on the catwalks unless authorized; nor had he been informed by his employer that he should remain in his work area at all times. (Docket 90, Ex. E, pg. 80). Farren had received safety instructions from his union to always be aware of his surroundings and knew, without being told, that when he was on any given job he was either supposed to be doing specifically assigned work in the area where the work was going on or in the areas where breaks were permitted. (Docket 84S, Ex. A, pgs. 104-05, 118).

Farren opened a door, which was unlocked, to get to the catwalk. (Docket 90, Ex. E, pg. 79). He did not remember seeing any signs on the door or having to step over anything to get on the catwalk. (Id., pgs. 79-80). He was the first one to walk out onto the catwalk, which was located on the roof in the area designated as Column M-22. (Docket 84S, Ex. A, pg. 83; Docket 90, Ex. F, General Introduction). Farren came from a lighted area inside to a dark area outside. (Docket 84S, Ex. A, pg. 84). As he was walking along the catwalk, he could see some spots in front of him but not other spots. (Id., pg. 86). After walking on the catwalk for no more than a minute...