Larkin v. Ralph O. Porter, Inc.

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtABRAMS
Citation539 N.E.2d 529,405 Mass. 179
Decision Date15 June 1989
PartiesJohn LARKIN v. RALPH O. PORTER, INC.; Cebco Corp., third-party defendant (and a companion case 1 ).

Page 529

539 N.E.2d 529
405 Mass. 179
John LARKIN
v.
RALPH O. PORTER, INC.; Cebco Corp., third-party defendant
(and a companion case 1).
Supreme Judicial Court of Massachusetts,
Middlesex.
Argued Feb. 8, 1989.
Decided June 15, 1989.

Robert H. Flynn (Brian P. Fay, Boston, with him), for Ralph O. Porter, Inc.

C. Mark Furcolo (John E. Bowen, Boston, with him), for Cebco Corp.

Before WILKINS, LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

ABRAMS, Justice.

Ralph O. Porter, Inc. (Porter), appeals from a summary judgment dismissing its

Page 530

cross-claim for indemnification against Cebco Corp. (Cebco). Porter was the general contractor for a project which involved converting an old warehouse in Stoneham into an office building. Porter engaged [405 Mass. 180] Cebco as a subcontractor to patch and paint the exterior of the building. On August 9, 1983, Cebco's scaffolding equipment at the project collapsed. Two of Cebco's employees, Harold Lahey and John Larkin (collectively, the plaintiffs), fell from the scaffolding and sustained injuries during the course of their work. Cebco paid workers' compensation benefits to Lahey and Larkin.

The plaintiffs sued Porter and other defendants, and Porter cross-claimed against Cebco, seeking indemnification for any judgment entered against Porter. 2 Porter settled with the plaintiffs. Both Porter and Cebco filed cross motions for summary judgment on Porter's claim for indemnification. Cebco argued that Porter's claim for indemnification was barred by the workers' compensation act which provides that an employer's payment of workers' compensation to its employees constitutes a release to the employer "of all claims or demands at law, if any, arising from the injury." G.L. c. 152, § 23 (1986 ed.). The Superior Court judge allowed Cebco's motion for summary judgment. We affirm.

We summarize the facts. Porter did not have experience patching and painting the exterior of buildings as high as the one involved in its project. Porter therefore sought to hire a skilled contractor to perform the patching and painting. Charles Bartlett, an officer of Cebco, telephoned Porter on or about July 3, 1983. According to Stephen Porter, an officer of Porter, Bartlett represented that the painting of the Stoneham building was an easy job, that Cebco was familiar with that type of job, and that Cebco had the necessary equipment to perform the work.

[405 Mass. 181] On July 7, 1983, Cebco submitted a written proposal to Porter in which Cebco offered to do the required work for $3,000. The written proposal mentioned the type of work to be done and the scheduling of the work, but did not mention Cebco's obligations in the case of default. At a chance meeting at the job site sometime after July 15, 1983, Bartlett represented to Stephen Porter that Bartlett's partner, Randolph LaBonte, would supervise the performance of the subcontract. At some time during one of the conversations concerning the project, Porter asked Cebco to provide Porter with a certificate of insurance. After the accident occurred, Cebco furnished the certificate. The certificate named only Cebco as the insured, and specifically stated that the certificate conferred no right on the certificate holder (Porter).

Porter concedes that there was no express indemnity agreement between it and Cebco. Porter argues, however, that, in these circumstances, Cebco impliedly agreed to indemnify Porter for any judgment entered against it, and that this implied agreement defeats the exclusive remedy provisions of the workers' compensation act. Cebco responds that there was no implied agreement to indemnify in this case, and therefore the workers' compensation act bars recovery by Porter against Cebco. We agree with Cebco.

General Laws c. 152, § 23 (1986 ed.), provides: "If an employee ... accepts payment of [workers'] compensation on account of personal injury ... such action shall constitute a release to the insurer of all claims or demands at common law, if any, arising from the injury." See G.L. c. 152, § 24 (1986 ed.). This exclusivity provision ordinarily bars a third party sued by the employee from recovering against the negligent employer who has paid workers' compensation. 2A A. Larson, Workmen's

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Compensation Law § 76.00 (1988). "[A]ny right of a third-party tortfeasor to recover indemnity from an employer who paid workmen's compensation benefits to an injured employee, must stem, if at all, from an express or implied contract of indemnity or from an obligation implied from the relationship of the parties." Decker v. Black & Decker Mfg. Co., 389 Mass. 35, 37, 449 N.E.2d 641 (1983), citing Liberty [405 Mass. 182] Mut. Ins. Co. v. Westerlind, 374 Mass. 524, 526-527, 373 N.E.2d 957 (1978). Assuming without deciding that we would recognize a right to indemnification from an employer based on an implied agreement, we conclude that there is no such implied agreement here. 3

The only contract between Cebco and Porter was an agreement that Cebco would provide the service of patching and painting the building. The evidence submitted by Porter does not indicate that the requests Porter made to Cebco for an insurance certificate meant that Cebco was to insure Porter. Further, Cebco introduced Bartlett's affidavit testimony that the contract between Cebco and Porter "did not require Cebco to obtain insurance for Ralph O. Porter, Inc., as a named insured for injuries ... which occurred at the project."

Porter argues, however, that the very fact that Cebco agreed to paint and patch the building for Porter implies an agreement to indemnify Porter for any loss. According to this argument, Cebco's agreement to provide services implies an agreement to perform the work in a workmanlike manner. See Friese v. Boston Consol. Gas Co., 324 Mass. 623, 628, 88 N.E.2d 1 (1949), citing Kelley v. Laraway, 223 Mass. 182, 184, 111 N.E. 794 (1916). Such an implied agreement, according to Porter, necessarily includes an agreement to indemnify Porter when Cebco is negligent and fails to perform the job in a workmanlike manner. Porter relies on Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. [405 Mass. 183] 124, 76 S.Ct. 232, 100 L.Ed. 133 (1955), to support its argument. In Ryan Stevedoring Co., the employee of a stevedoring company who was loading cargo on a ship was injured. Having been paid workers' compensation under the Federal longshoremen's act by his employer, the employee sued the owner of the...

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21 practice notes
  • Sharp v. Hylas Yachts, LLC, Nos. 16-1917, 16-1923.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 22 Septiembre 2017
    ...agreements only when the terms of the contract themselves contemplate[ ] such indemnification." Larkin v. Ralph O. Porter, Inc., 405 Mass. 179, 539 N.E.2d 529, 532 (1989) ; see also Decker, 449 N.E.2d at 643 (distinguishing between an "implied contract of indemnity" and a tor......
  • Steffen v. Viking Corp., Civil No. 2004-10592-RBC.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • 6 Julio 2006
    ...for such a claim, in the appropriate factual circumstances, has certainly been left open. See, e.g., Larkin v. Ralph O. Porter, Inc., 405 Mass. 179, 182, 539 N.E.2d 529, 531 (1989) ("Assuming without deciding that we would recognize a right to indemnification from an employer based on ......
  • O'Brien v. Christensen
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 14 Marzo 1996
    ...have Page 211 been found to be an independent contractor who hired his brother as a subcontractor. See Larkin v. Ralph O. Porter, Inc., 405 Mass. 179, 185 n. 7, 539 N.E.2d 529 (1989) (general contractor may be liable for acts or omissions of subcontractor that cause injury to member of the ......
  • Fraco Prods., Ltd. v. Bostonian Masonry Corp., No. 12–P–933.
    • United States
    • Appeals Court of Massachusetts
    • 26 Septiembre 2013
    ...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 attem......
  • Request a trial to view additional results
21 cases
  • Sharp v. Hylas Yachts, LLC, Nos. 16-1917, 16-1923.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 22 Septiembre 2017
    ...agreements only when the terms of the contract themselves contemplate[ ] such indemnification." Larkin v. Ralph O. Porter, Inc., 405 Mass. 179, 539 N.E.2d 529, 532 (1989) ; see also Decker, 449 N.E.2d at 643 (distinguishing between an "implied contract of indemnity" and a tort-based "obliga......
  • Steffen v. Viking Corp., Civil No. 2004-10592-RBC.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • 6 Julio 2006
    ...for such a claim, in the appropriate factual circumstances, has certainly been left open. See, e.g., Larkin v. Ralph O. Porter, Inc., 405 Mass. 179, 182, 539 N.E.2d 529, 531 (1989) ("Assuming without deciding that we would recognize a right to indemnification from an employer based on an im......
  • O'Brien v. Christensen
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 14 Marzo 1996
    ...have Page 211 been found to be an independent contractor who hired his brother as a subcontractor. See Larkin v. Ralph O. Porter, Inc., 405 Mass. 179, 185 n. 7, 539 N.E.2d 529 (1989) (general contractor may be liable for acts or omissions of subcontractor that cause injury to member of the ......
  • Fraco Prods., Ltd. v. Bostonian Masonry Corp., No. 12–P–933.
    • United States
    • Appeals Court of Massachusetts
    • 26 Septiembre 2013
    ...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 attem......
  • Request a trial to view additional results

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