Fraco Prods., Ltd. v. Bostonian Masonry Corp.

• Decision Date: 26 September 2013
• Docket Number: No. 12–P–933.,12–P–933.
• Citation: 995 N.E.2d 1125,84 Mass.App.Ct. 296
• Court: Appeals Court of Massachusetts
• Parties: FRACO PRODUCTS, LTD., & another v. BOSTONIAN MASONRY CORPORATION.

84 Mass.App.Ct. 296

995 N.E.2d 1125

FRACO PRODUCTS, LTD., & another ¹

v.BOSTONIAN MASONRY CORPORATION.

No. 12–P–933.

Appeals Court of Massachusetts,

Suffolk.

Argued May 6, 2013.

Decided Sept. 26, 2013.

James E. Carroll, Boston, for the plaintiffs.

Robert R. Pierce, Boston, for the defendant.

Present: KANTROWITZ, KATZMANN, & RUBIN, JJ.

KATZMANN, J.

This appeal arises from a construction accident and involves a dispute over indemnification.² the primary issue on appeal is whether the trial judge properly granted summary judgment against Fraco Products, Ltd., and Fraco Products, Inc. (collectively, Fraco), on their third-party complaint seeking indemnification from Bostonian Masonry Corporation (Bostonian) on a theory of common-law indemnity, where Bostonian had paid workers' compensation benefits to the estate of its employee, the plaintiff in the underlying suit.³ We affirm.

Background. Fraco is a designer, manufacturer, and seller of industrial mast-climbing platforms used in construction. The mast-climbing platforms are used instead of scaffolding. They are long platforms that are hydraulically lifted up (or lowered down) a mast extending up the side of a structure. Construction workers, such as masons, stand on the platforms to install materials, such as stone and windows. On April 8, 2004, Fraco sold Bostonian six platforms, including the mast-climbing platform (Machine No. 10) at issue in this construction accident, for $225,710. Bostonian paid an initial amount upon delivery and then paid the remainder in five monthly installments. The terms and conditions of the contract provided the following language as to the right of ownership:

“Right of Ownership—Under this Agreement, the SELLER [Fraco] shall remain and shall continue to remain the owner of the Equipment sold to the BUYER [Bostonian], the Parties agreeing that the ownership shall not be transferred neither [ sic ] at the drafting stage of the Agreement, nor upon delivery of the Equipment, but only after all sums due, as stated in each and every invoice to be issued by the SELLER, will have been paid in full to the SELLER.”

The terms and conditions of the sales contract also included provisions as to risk of loss and indemnification. See part 3, infra. In the project at issue, Bostonian worked as the masonry subcontractor to George B.H. Macomber Company, the general contractor, during the construction of a dormitory building at Emerson College. In April of 2006, Bostonian was using eleven Fraco mast-climbing platforms to install a limestone exterior on the dormitory. On April 3, 2006, Bostonian employees were dismantling Machine No. 10 when it collapsed onto Boylston Street, killing a passerby as well as two construction workers, including Romildo Campos DaSilva, a Bostonian employee.

On April 11, 2006, DaSilva's estate filed suit against Fraco, as well as other defendants.⁴ The estate alleged that Fraco was negligent in the design, manufacture, installation, service, and inspection of Machine No. 10. The estate did not name Bostonian as a defendant, presumably because Bostonian had paid workers' compensation benefits covering DaSilva. See G.L. c. 152, § 23.⁵ Consequently, Fraco filed a third-party complaint against Bostonian seeking (i) contribution and (ii) indemnification on theories of contractual and common-law indemnity.

On February 5, 2009, Bostonian moved for summary judgment on Fraco's third-party claims. The Superior Court judge originally assigned to the case held oral argument and allowed Bostonian's motion for summary judgment as to Fraco's contribution claims.⁶ As to the indemnification claims, the judge deferred judgment. On March 31, 2010, shortly before trial was to begin, Bostonian filed a renewed motion for partial summary judgment as to Fraco's indemnification claims. On April 6, 2010, a different Superior Court judge (trial judge) heard oral argument on these issues. The court recessed after hearing argument,and returned the same day with a ruling, granting summary judgment in Bostonian's favor on Fraco's common-law and contractual indemnity claims. The judge explained her reasoning in the following margin entry: “Upon further argument and further review of papers and case law, this motion is allowed for reasons argued....” After several days of trial, DaSilva's estate and Fraco settled the estate's remaining claims before the case reached the jury. Final judgment entered on February 3, 2011. Fraco now appeals from so much of the judgment as dismissed its common-law and contractual indemnification claims against Bostonian.⁷

Discussion. 1. Standard of review. On appeal, we review the motion judge's grant of summary judgment de novo. Dennis v. Kaskel, 79 Mass.App.Ct. 736, 740, 950 N.E.2d 68 (2011). We undertake the following evaluation:

“[We] determine whether, on the basis of the affidavits submitted by the parties, summary judgment was properly granted. Pursuant to Mass.R.Civ.P. 56(c) ..., only if ... there is no genuine issue as to any material fact [is] ... the moving party ... entitled to a judgment as a matter of law. [A]ll doubt as to the existence of a genuine issue of material fact must be resolved against the party moving for summary judgment.

“In considering a motion for summary judgment, the court does not pass upon the credibility of witnesses or the weight of the evidence [or] make [its] own decision of facts. [T]he moving party must affirmatively show that there is no real issue of fact, all doubts being resolved against the party moving for summary judgment.”

Shawmut Worcester County Bank, N.A. v. Miller, 398 Mass. 273, 281, 496 N.E.2d 625 (1986) (internal citations omitted).

2. Common-law indemnity. Fraco provided Machine No. 10, and Fraco employees helped to install it at the worksite. It is undisputed that only Bostonian employees were engaged in the dismantling of Machine No. 10 when the accident occurred. As we have noted, in the underlying suit, the plaintiff estate alleged that Fraco was negligent in the design, manufacture, installation, service, and inspection of Machine No. 10. Fraco advances two arguments as to why Bostonian could be found to owe Fraco common-law indemnification.

a. While denying any negligence on its part, Fraco contends that if it was in fact liable, its liability was derivative or vicarious of Bostonian's liability; Bostonian, not Fraco, dismantled Machine No. 10, and a Bostonian employee directed the removal of the anchor tie that led to the collapse of the mast-climbing platform and the death of the plaintiffs' decedent. In short, Fraco contends that if this case were to proceed to trial, the evidence would show that it played at most a de minimis role in erecting Machine No. 10 at the construction site and that Bostonian was liable for the accident. Ultimately, Fraco argues that this question of liability is an issue of fact that requires a jury trial and that is not amenable to resolution at summary judgment. We disagree.

The exclusivity provision in the workers' compensation statute, G.L. c. 152, § 23 (see note 5, supra ), “ordinarily bars a third party sued by the employee from recovering against the negligent employer who has paid workers' compensation.” Larkin v. Ralph O. Porter, Inc., 405 Mass. 179, 181, 539 N.E.2d 529 (1989). In Liberty Mut. Ins. Co. v. Westerlind, 374 Mass. 524, 373 N.E.2d 957 (1978), a case where the defendant attempted to implead an employer which, like Bostonian, had paid workers' compensation benefits to the employee's estate, the Supreme Judicial Court observed, “The majority position is that a third-party tortfeasor may recover indemnity from an employer only if the employer had expressly or impliedly contracted to indemnify the third party or if the employer and the third party stand in a relationship that carries with it the obligation to indemnify the third party.” Id. at 526, 373 N.E.2d 957. Setting aside, for the moment, the language in Westerlind allowing for contractual indemnity, see part 3, infra, we focus on the court's statement that a relationship between two parties may give rise to third-party common-law indemnification. The Supreme Judicial Court has provided guidance as to the scope of the relationshipexception identified in Westerlind that allows for common-law indemnification.

In Decker v. Black & Decker Mfg. Co., 389 Mass. 35, 449 N.E.2d 641 (1983), the plaintiff, an employee injured in a workplace accident, sued the manufacturer and supplier of the equipment involved in the accident. The court held that the relationship between a product manufacturer/supplier and the purchaser is not a relationship that typically gives rise to third-party common-law indemnification. Id. at 39–41, 449 N.E.2d 641. Prior to bringing suit, the plaintiff had received double compensation from his employer pursuant to the workers' compensation statute, upon a finding that the employer had engaged in “serious and wilful misconduct.” The plaintiff's complaint against the manufacturer alleged negligent manufacture, negligent failure to warn, and negligent failure to correct defects in the equipment. As to the supplier, the plaintiff alleged negligent failure to inspect, negligent failure to warn, and breach of express and implied warranties. Id. at 36, 449 N.E.2d 641. The defendants filed a third-party complaint against the employer, asserting, as here, that a “special relationship” giving rise to indemnification from the employer arose because they “did not join in the act of negligence which caused the plaintiff's injury.” Id. at 40, 449 N.E.2d 641. The Supreme Judicial Court rejected the argument. The court first noted that “[t]his right to indemnity is limited to those cases in which the would-be indemnitee is held derivatively or vicariously liable for the wrongful act of another.” Id. at 40, 449 N.E.2d 641. The court then went on to explain that, under the facts of the case, the defendants could not satisfy this requirement: either the...