Jones v. Vappi Co., Inc.

• Decision Date: 22 November 1989
• Docket Number: No. 88-P-628,88-P-628
• Citation: 28 Mass.App.Ct. 77,546 N.E.2d 379
• Parties: Donald H. JONES et al. 1 v. VAPPI COMPANY, INC.; General Iron Steel Works, Inc., Third-Party Defendant.
• Court: Appeals Court of Massachusetts

Page 379

546 N.E.2d 379

28 Mass.App.Ct. 77

Donald H. JONES et al. ¹ v. VAPPI COMPANY, INC.; General Iron Steel Works, Inc. Third-Party Defendant.

No. 88-P-628.

Appeals Court of Massachusetts Middlesex.

Argued Oct. 12, 1989.

Decided Nov. 22, 1989.

Thomas J. Lynch, Boston, for Gen. Iron Steel Works, Inc.

Charles Mark Furcolo, Boston, for Vappi Co., Inc.

Before DREBEN, KASS and WARNER, JJ.

KASS, Justice.

Donald Jones and Anthony Tokowicz were hurt when a steel beam on which they were sitting gave way during construction of a film processing plant for the Polaroid Corporation. For purposes of the appeal, which involves interpretation of an indemnity clause, the active players are Vappi Company, Inc. ("Vappi"), the general contractor, and General Iron Steel Works, Inc. ("General Iron"), a subcontractor to Vappi responsible for fabricating and erecting structural steel and steel decking. Jones and Tokowicz were employees of V & V Erectors, Inc. ("V & V"), to which General Iron had let a sub-subcontract for the erection work.

During the course of the trial, Vappi moved for summary judgment on the ground that it was the beneficiary of an indemnity obligation which it had imposed on General Iron in their subcontract. Vappi, as it construed the scope of the indemnity clause, would not be bound to pay damages to the plaintiffs in any event. The trial judge decided that question in favor of Vappi. Against the possibility that he might be mistaken on the indemnity issue, the judge astutely refrained from entering a judgment and kept Vappi in the case so that, should the indemnity point come out differently on appeal, the case would not have to be retried.

Before the case went to the jury, General Iron settled with all the plaintiffs ² for $1,000,000 in exchange for full releases of itself, Polaroid, and Vappi. General Iron thereby succeeded in limiting its exposure to an aggregate $1,000,000 irrespective of the ultimate decision on the indemnity point. So that the indemnity question might be presented on appeal, the jury were then asked, by special verdict, to find who had been negligent. They determined that negligence lay with Vappi and V & V. ³ General Iron was found not negligent.

We turn now to the disputed language, which appears in Article III(10) of the subcontract between Vappi and General Iron. So far as pertinent, General Iron agreed:

"To indemnify and save the Contractor [Vappi] ... harmless from and against any and all costs, loss, expense, liability, damages, or claims for damages arising or resulting from any work of the Subcontractor [General Iron], including attorney's fees, expenses and costs of defending any action on account of any injury or damage to property or persons, or on account of any other action against the Contractor ... for any liability ... arising out of any work performed by or required from the Subcontractor and on account of any injury (including death) to any persons or property arising or resulting from the Work provided for or performed by the Subcontractor...."

1. Scope of the indemnity clause. General Iron attempts to elude the reach of the indemnity provision by arguing, first, that the indemnity clause does not apply because inadequate safety measures caused the accident and, under the contract, supervision and safety were not included in General Iron's work. It is an unpersuasive argument in light of the opinions in Shea v. Bay State Gas Co., 383 Mass. 218, 418 N.E.2d 597 (1981); Whittle v. Pagani Bros. Constr. Co., 383 Mass. 796, 798-799, 422 N.E.2d 779 (1981); Aho v. Blanchette, 18 Mass.App.Ct. 149, 151-152, 463 N.E.2d 1203 (1984); and Speers v. H.P. Hood, Inc., 22 Mass.App.Ct. 598, 495 N.E.2d 880 (1986). Those cases emphasize that indemnity provisions are not to be read grudgingly against the indemnitee but "like any ordinary contract, with attention to language, background and purpose." Id. at 600, 495 N.E.2d 880.

As to language, so far from excluding supervision, the definition of the scope of the work in Article I of the subcontract expressly calls upon the subcontractor to furnish "all things necessary to complete all work ... including ... supervision ...," and Article III(7) requires General Iron to comply with safety requirements in the general contract documents and to require similar compliance of its agents, employees, and subcontractors. ⁴ References to supervision and safety only make the case easier. Even in their absence the indemnity clause is a broad one which places on General Iron unqualified responsibility for injuries arising out of its part of the job, the fabrication and erection of the steel. An explicit statement, as General Iron would have it, that the indemnity extended to matters of safety and supervision was not required. The purpose of an all encompassing clause of the sort used is to avoid becoming snared by an enumeration which omits the very mischance that, in the event, occurs.

Against the background of a moderately large construction project, it is unremarkable for a general contractor to shift to a subcontractor responsibility for claims connected to that subcontractor's work. See Speers v. H.P. Hood, Inc., 22 Mass.App.Ct. at 601, 495 N.E.2d 880. The risk so allocated becomes the subject of insurance which the subcontractor, under Article VI of the subcontract, is required to carry. Compare id. At bottom, the purpose of the indemnity clause is to distribute among the subcontractors and suppliers insurance burdens covering their respective areas of responsibility. Recognition of that purpose reinforces reading the language of the contract for what it says, rather than for what it omits. Contrast Bendetson v. Coolidge, 7 Mass.App.Ct. 798, 801, 390 N.E.2d 1124 (1979).

In a variation on its theme of limiting the scope of the indemnity clause, General Iron argues that the failure of the clause to state expressly that the subcontractor must indemnify Vappi even when it, as general contractor, is concurrently negligent ⁵ injects an ambiguity to be resolved against the contractor. Here again, General Iron attempts to find an implied exception in a clause which speaks of "all costs, loss, expense, liability, damages, or claims for damages arising or resulting from any work of the Subcontractor ... or on account of any other action against the Contractor ... for any liability ... arising out of any work performed or required from the Subcontractor ..." (emphasis supplied). The attempt cannot succeed without stripping the indemnity clause of a sensible and practical construction. See Shea v. Bay State Gas Co., 383 Mass. at 223-224, 418 N.E.2d 597.

2. Application of G.L. c. 149, § 29C. There is not even surface merit to the argument that the indemnity clause is invalid by reason of G.L. c. 149, § 29C. In its first form, § 29C was inserted by St.1984, c. 484, § 43. The subcontract between Vappi and General Iron was executed December 19, 1978, five years before the legislation was passed. ⁶ Except in the rarest instances and then, usually, only with respect to procedural matters, legislation operates prospectively, not retrospectively. Goes v. Feldman, 8 Mass.App.Ct. 84, 87-89, 391 N.E.2d 943 (1979), which discusses some of the reasons for the rule. Cranberry Realty & Mortgage Co. v. Ackerley Communications, Inc., 17 Mass.App.Ct. 255, 258, 457 N.E.2d 674 (1983). See Nationwide Mut. Ins. Co. v. Commissioner of Ins., 397 Mass. 416, 421-423, 491 N.E.2d 1061 (1986), for an illustration of a statute which, by reason of express language in it, retroactively displaced certain contract rights within constitutional limits. There is no language in the 1984 act from which an inference of intent to achieve retroactive effect may fairly be drawn. The act has no bearing on the contract before us.

General Iron wishes to invoke G.L. c. 149, § 29C, because, in its 1984 form, § 29C declared indemnity clauses in construction contracts which absolved indemnitees from their own negligence to be "against the public policy and ... void and unenforceable." A substantial revision of § 29C was made soon thereafter by St.1985, c. 228, § 3. Section 4 of the 1985 act made the amendment retroactively effective as of April 7, 1985, the effective date of the 1984 act. The later version of § 29C was, therefore, a total substitution for the original. It is less sweeping and declares void indemnity provisions in construction contracts only when the injury is "not caused by the subcontractor or its employees, agents or subcontractors ..." (emphasis supplied). Even if § 29C, therefore, were given retroactive effect, it...