Herson v. New Boston Garden Corp., 94-P-1285

CourtAppeals Court of Massachusetts
Writing for the CourtLENK
Citation40 Mass.App.Ct. 779,667 N.E.2d 907
PartiesLeon HERSON & others 1 v. NEW BOSTON GARDEN CORPORATION & others. 2
Docket NumberNo. 94-P-1285,94-P-1285
Decision Date02 October 1996

Page 907

667 N.E.2d 907
40 Mass.App.Ct. 779
Leon HERSON & others 1
No. 94-P-1285.
Appeals Court of Massachusetts,
Argued Oct. 10, 1995.
Decided July 24, 1996.
Further Appellate Review Denied Oct. 2, 1996.

Page 910

[40 Mass.App.Ct. 780] Wm. Gerald McElroy, Jr., Waltham, for Massachusetts Electric Construction Company, Inc.

Mark E. Cohen, Boston, for Bechtel Civil, Inc.

Thomas P. LaFrance, Boston, for New Boston Garden Corporation.


LENK, Justice.

In 1987, appellant Massachusetts Electric Construction Company, Inc. (Mass Electric), installed switchgear in an electrical vault at the Boston Garden pursuant to a written subcontract with the general contractor, Bechtel Civil, Inc. (Bechtel). The subcontract contained an indemnification provision in favor of Bechtel and the owner, New Boston Garden Corporation (NBG).

[40 Mass.App.Ct. 781] In 1990, Leon Herson and Dennis Worobey, two employees of another electrical subcontractor, F.H. Newton Electrical Co., Inc. (Newton), were severely injured (Worobey

Page 911

later died) while working in the vault on high voltage equipment during another phase of the project at the Boston Garden. Herson and his wife and Worobey's estate each brought a lawsuit against, among others, NBG, Bechtel, and Mass Electric. NBG and Bechtel in turn asserted indemnification and contribution claims against, among others, Mass Electric. All the defendants settled Worobey's claims before trial; all the defendants except Mass Electric settled Herson's claims before trial. 3 The Herson lawsuit was tried to a jury which found Mass Electric causally negligent, assigning it 72.5 percent of the liability and Herson the remainder.

Mass Electric does not appeal from the jury verdict for Herson. Rather, it appeals from the judgment entered for NBG 4 on its indemnification claims, requiring Mass Electric to indemnify NBG fully for payments it made to settle with Herson and Worobey. As grounds, Mass Electric contends that the Superior Court judge erred: (1) in requiring Mass Electric to pay full indemnification to NBG; (2) in refusing to submit to the jury several special interrogatories; (3) in excluding certain evidence; and (4) in refusing to extinguish or reduce the amount of NBG's judgment for indemnification as a result of NBG's settlement with a coindemnitor. For the reasons discussed below, we affirm.

1. The indemnification agreement. The indemnification agreement in the subcontract between Mass Electric and Bechtel states:

"Subcontractor [Mass Electric] hereby releases and shall indemnify, defend and hold harmless Owner [NBG] and Contractor [Bechtel] and their subsidiaries and affiliates and the officers, agents, employees, successors and assigns and authorized representatives of all of the foregoing from and against any and all suits, actions, legal or [40 Mass.App.Ct. 782] administrative proceedings, claims, demands, damages, liabilities, interest, attorney's fees, costs and expenses of whatsoever kind or nature including those arising out of injury or death of Subcontractor's employees whether arising before or after completion of the work hereunder and in any manner directly or indirectly caused, occasioned or contributed to in whole or in part, or claimed to be caused, occasioned or contributed to in whole or in part, by reason of any act, omission, fault or negligence whether active or passive of Subcontractor, its subcontractors or of anyone acting under its direction or control or on its behalf in connection with or incidental to the performance of this contract. Subcontractor's aforesaid release, indemnity and hold harmless obligations, or portions or applications thereof, shall apply even in the event of the fault or negligence, whether active or passive, or strict liability of the parties released, indemnified or held harmless to [the] fullest extent permitted by law, but in no event shall they apply to liability caused by the sole negligence or willful misconduct of the parties released, indemnified or held harmless."

Mass Electric contends that the trial judge erroneously applied this provision because (a) it is grossly unfair to interpret it to apply to NBG's independent liability for an accident occurring three years after Mass Electric performed the construction work that was the subject of the subcontract; (b) to the extent the provision applies at all, it applies only in proportion to the percentage of Mass Electric's causal negligence measured against NBG's causal negligence; and (c) the provision is void ab initio since it does not limit Mass Electric's indemnification responsibility only to accidents caused by Mass Electric.

a. Unfairness. Indemnification provisions are to be read without any bias for the indemnitor or against the indemnitee. They are to be interpreted like any other contract, with attention to language, background, and purpose. Speers v. H.P. Hood, Inc., 22 Mass.App.Ct. 598, 600, 495 N.E.2d 880 (1986). Mass Electric's assertion that it was unfair for the judge to declare the indemnification provision applicable rests on its

Page 912

view that temporal factors, NBG's alleged independent subsequent negligence, and the insurance provisions of the subcontract [40 Mass.App.Ct. 783] agreement must all be taken into consideration in construing and ascertaining the applicability of the indemnification provision. The plain language of the unambiguous indemnification provision here defeats Mass Electric's thesis.

Notwithstanding the fact that Herson's injury occurred well after Mass Electric had left the job site, no temporal limits upon Mass Electric's indemnification obligation appear in the subcontract. That agreement states that Mass Electric "shall indemnify, defend and hold harmless [NBG] ... from and against any and all suits, actions ... damages, liabilities ... whether arising before or after completion of the work hereunder" (emphasis added). The jury found Mass Electric causally negligent for the work it performed in 1987 which injured Herson in 1990. The language of the indemnification clause encompasses just such temporal lags and there is nothing unfair in this regard about holding Mass Electric to its agreement. 5

b. Proportional liability. The jury made no finding regarding NBG's alleged causal negligence. Nonetheless, Mass Electric dwells upon what it contends was sufficient evidence at trial establishing NBG's independent negligence, 6 which occurred long after Mass Electric completed work on the 1987 project phase. Mass Electric argues that a reasonable construction of the indemnification agreement would not permit NBG to be indemnified for such negligence. Instead, at most, NBG should be indemnified only for NBG's indivisible, concurrent liability arising out of Mass Electric's performance of work.

Once again, Mass Electric is thwarted by the plain language of its indemnity undertaking, which contains no limitation upon Mass Electric's obligations even where there is separate and intervening negligence by NBG. So long as the injury was not caused by NBG's "sole negligence or willful misconduct," the contract requires indemnification even "in [40 Mass.App.Ct. 784] the event of the fault or negligence" of NBG. The jury's unappealed verdict establishes that Herson's injuries were not caused by NBG's "sole negligence." Further, the agreement does not in any way qualify Mass Electric's indemnity obligation by limiting it to instances where NBG's negligence is indivisible and concurrent with that of Mass Electric.

Similarly, Mass Electric's contention that the insurance provisions of the subcontract limit its indemnity obligations is unavailing. 7

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There is no reason to think that this provision [40 Mass.App.Ct. 785] functions as a temporal constraint upon the application of the indemnity obligation rather than as an additional means of providing financial protection for NBG and Bechtel. The last paragraph of the insurance clause says as much.

c. General Laws c. 149, § 29C. We turn to Mass Electric's argument that even if the language of the indemnity agreement would otherwise require full indemnification, G.L. c. 149, § 29C, forbids this result. 8 The statute, Mass Electric contends, either voids the indemnity agreement ab initio because it does not limit Mass Electric's indemnification responsibility solely to accidents caused by Mass Electric or because the statute imposes the limitation that there be indemnification only for Mass Electric's proportional causal negligence.

General Laws c. 149, § 29C, as amended by St.1986, c. 557, § 135, states in relevant part:

"Any provision for or in connection with a contract for construction ... which requires a subcontractor to indemnify any party for injury to persons or damage to property not caused by the subcontractor or its employees, agents or subcontractors, shall be void."

Mass Electric argues (1) that, under the subject contractual indemnity provision, the duty to indemnify is triggered not [40 Mass.App.Ct. 786] when a finding of Mass Electric's fault is made but whenever it is "claimed" that Mass Electric is responsible for an injury, and (2) that indemnification is required even when Mass Electric is not causally liable, where its "act" in some manner "occasioned" a plaintiff's injuries. Accordingly, Mass Electric reasons, the provision is void ab initio under § 29C.

In determining the validity of an indemnity provision under § 29C, it is upon the language of the indemnity clause that we focus rather than upon a finding of the facts of the particular accident and an assessment of fault of the parties. Harnois v. Quannapowitt Dev., Inc., 35 Mass.App.Ct. 286, 288, 619 N.E.2d 351 (1993); Callahan v. A.J. Welch Equip. Corp., 36 Mass.App.Ct. 608, 611, 634 N.E.2d 134 (1994). This furthers the loss shifting function of the statute and clarifies where the burden of acquiring...

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