Ferreira v. Beacon Skanska Const. Co., Inc.

Citation296 F.Supp.2d 28
Decision Date22 December 2003
Docket NumberNo. CIV.A.2002-12213-RB.,CIV.A.2002-12213-RB.
PartiesErick FERREIRA, Lori Ferreira and Ashlay Ferreira, a minor through her father Erick Ferreira Plaintiffs, v. BEACON SKANSKA CONSTRUCTION COMPANY, INC. and M.L. McDonald Sales Company, Inc. Defendants.
CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

William Tennison Smitherman, Smitherman Law Offices, Cranston, RI, for Plaintiffs.

Thomas C. Federico, Morrison, Mahoney & Miller, LLP, Michael P. Guagenty, Sloane & Walsh, Patrick M. McCormack, Law Offices of Peter D. Feeherry, William A. McCormack, Bingham McCutchen LLP, Boston, MA, Amy A. Parker, Morrison, Mahoney & Miller, Providence, RI, for Defendants.


COLLINGS, United States Magistrate Judge.


In late 2000 or early 2001, Erick Ferreira, Lori Ferreira and Ashlay Ferreira (collectively, the "plaintiffs") filed this action in federal court in Rhode Island against Beacon Skanska Construction Company, Inc. ("Beacon Skanska") and M.L. McDonald Sales Company, Inc. ("McDonald") (collectively, the "defendants") for injuries Mr. Ferreira sustained after tripping on some insulation at a construction site where he was working for a subcontractor, Fire Suppression Systems, Inc.1 Specifically, Mr. Ferreira alleged in the complaint that on June 29, 1999, while working at the construction site, he was carrying a long length of pipe, tripped on some insulation scattered on the ground and fell, sustaining serious injuries. (See Original File, Certified Copy of Transfer Order # 1, containing Amended Complaint at ¶¶ 11-12, 17-18, 21-22, 27-28) Defendant Beacon Skanska was the general contractor for the construction project (hereinafter, the "construction site") where Mr. Ferreira was injured, and defendant McDonald was a subcontractor at the construction site in charge of installing insulation. (Amended Complaint, ¶¶ 8-9)

On or about November 8, 2002, the United States District Court for the District of Rhode Island transferred this case to this Court. On or about November 22, 2002, McDonald filed an Answer to the Complaint, Affirmative Defenses, Crossclaim Against and Answer to Crossclaim of Co-Defendant, Beacon Skanska Construction Company, Inc.(# 2)2, and on or about December 6, 2002, Beacon Skanska filed an Answer to Cross Claim of M.L. McDonald Sales Company, Inc. (# 4) On or about March 24, 2003, the District Judge to whom this case was assigned transferred this case to the undersigned for all purposes pursuant to 28 U.S.C. § 636(c). (Notice of Case Assignment # 10) On or about September 17, 2003, the parties filed a Stipulation of Dismissal of Action Pursuant to Rule 41(a)(1)(ii) of the Plaintiffs' Claims Only (# 21). That is, the parties dismissed the case as to the plaintiffs' claims, but the cross-claims still remain.

On or about October 27, 2003, Beacon Skanska filed its Motion for Summary Judgment (# 24), along with a Supporting Memorandum of Law (# 25), in which it seeks reimbursement of its defense costs (totaling approximately $35,000). On or about November 17, 2003, McDonald filed its Memorandum in Support of Opposition to Motion of Beacon Skanska Construction Co. for Summary Judgment (# 29). Having been fully briefed, Beacon Skanska's motion for summary judgment is in a posture for resolution. For the reasons discussed below, the motion will be allowed.


Summary judgment is "a device that `has proven its usefulness as a means of avoiding full-dress trials in unwinnable cases, thereby freeing courts to utilize scarce judicial resources in more beneficial ways.'" Mullin v. Raytheon Co., 164 F.3d 696, 698 (1st Cir.1999), cert. denied 528 U.S. 811, 120 S.Ct. 44, 145 L.Ed.2d 40 (1999) (quoting Mesnick v. General Electric Co., 950 F.2d 816, 822 (1st Cir.1991)). The party moving for summary judgment "bears the initial burden, which may be discharged by pointing to the absence of adequate evidence supporting the nonmoving party's case." Michelson v. Digital Financial Svcs., 167 F.3d 715, 720 (1st Cir.1999). After the moving party has met its burden, "the onus is on the nonmoving party to present facts that show a genuine issue for trial." Id.

When considering whether to grant summary judgment, the Court must determine whether:

... the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is a genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(c). In making this assessment, the Court must "accept all reasonable inferences favorable to the nonmovant." Mullin, 164 F.3d at 698; see also Feliciano v. State of Rhode Island, 160 F.3d 780, 788 (1 Cir., 1998).

A factual dispute which is neither "genuine" nor "material" will not survive a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether a factual dispute is "genuine," the Court must determine whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.; see also Fajardo Shopping Center, S.E., v. Sun Alliance Ins. Co. of Puerto Rico, Inc., 167 F.3d 1, 7 (1st Cir. 1999) ("[A]n issue is `genuine' if the evidence presented is such that a reasonable jury could resolve the issue in favor of the nonmoving party"); De-Jesus-Adorno v. Browning Ferris Indus. of Puerto Rico, 160 F.3d 839, 841-42 (1st Cir.1998) ("A trialworthy issue exists ... [if] the evidence is `sufficiently open-ended to permit a rational factfinder to resolve the issue in favor of either side.'"); Feliciano, 160 F.3d at 784; Hodgens v. General Dynamics Corp., 144 F.3d 151, 158 (1st Cir.1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In weighing whether a factual dispute is "material," the Court must examine the substantive law of the case, because "only disputes over the facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also De-Jesus-Adorno, 160 F.3d at 841-42 ("A trialworthy issue exists if the evidence is such that there is a factual controversy pertaining to an issue that may affect the outcome of the litigation under the governing law"); Fajardo Shopping Center, S.E., 167 F.3d at 7 (citing Pagano v. Frank, 983 F.2d 343, 347 (1st Cir.1993)).

Rule 56 does not permit the party opposed to the summary judgment motion to rest upon the mere allegations or denials in its own pleadings. See Mullin, 164 F.3d at 698 (quoting Wynne v. Tufts Univ. Sch. of Medicine, 976 F.2d 791, 794 (1st Cir.1992), cert. denied, 507 U.S. 1030, 113 S.Ct. 1845, 123 L.Ed.2d 470 (1993)) ("Its essential role is to `pierce the boilerplate of the pleadings and assay the parties proof in order to determine whether trial is actually required.'"). Rather, Rule 56(c):

mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which the party will bear the burden of proof at trial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).


Beacon Skanska has moved for summary judgment, asserting that based on the contract between Beacon Skanska and McDonald, McDonald "is obligated to defend against any implication of Beacon's interest with respect to this suit." (# 25, p. 4) Beacon Skanska argues that "regardless of where responsibility for the plaintiffs' alleged injuries is finally found to lie, if the duty to defend provision of the subcontract is to have any meaning or effect, M.L. McDonald became contractually required to assume Beacon's defense as soon as a claim was made against Beacon, i.e., upon the filing of the plaintiff's [sic] complaint against it." (Id. at p. 6)

McDonald, on the other hand, posits that Beacon Skanska is not entitled to summary judgment because there is not enough proof that McDonald caused Mr. Ferreira's accident-that is, even though "Erick Ferreira was working ... within the scope of his responsibilities for Fire Suppression Systems ... when the accident occurred, that fact alone does not demonstrate that [McDonald's] action or inaction provoked the mishap." (# 29, pp. 7-8) While the Court does not entirely agree with Beacon Skanska's reasoning, the Court will, for the reasons discussed below, allow Beacon's Skanska's motion for summary judgment.

The Massachusetts Appeals Court recently addressed the correct standard to be utilized in determining when a subcontractor must indemnify the general contractor:

the causation standard to be applied to trigger a subcontractor's indemnification obligation in a construction contract is that established by our decision in Miley v. Johnson & Johnson Orthopaedics, Inc., 41 Mass.App.Ct. at 33, 668 N.E.2d 369 [rev. denied, 423 Mass. 1111, 672 N.E.2d 539 (1996)]. Under the Miley standard, there must be proof that the subcontractor's action or inaction provoked the mishap. Ibid.

Johnson v. Modern Continental Const. Co., Inc., 49 Mass.App.Ct. 545, 548, 731 N.E.2d 96, 99 (2000), rev. denied, 432 Mass. 1109, 737 N.E.2d 468 (2000).

In this case, Beacon Skanska is not seeking indemnification per se but is seeking reimbursement of its defense costs, based on language in the contract (the "contract") it entered into with McDonald. The two clauses in the contract that are relevant for deciding the instant motion state, as follows:

11.1 Subcontractor's Performance To the maximum extent permitted by law, the Subcontractor shall indemnify, defend with counsel acceptable to Owner and Contractor, and save harmless the Owner and the Contractor ... of and from any and all claims,...

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