Level 3 Communications, Llc v. Mci Worldcom, Inc.
| Decision Date | 03 July 2001 |
| Docket Number | 995641 |
| Parties | Level 3 Communications, LLC v. MCI Worldcom, Inc. et al.1 |
| Court | Massachusetts Superior Court |
Mass L. Rptr. Cite: 13 Mass. L. Rptr. 420
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): HINKLE
The plaintiff, Level 3 Communications, LLC ("plaintiff"), has filed suit against MCI Worldcom Inc. and Tishman Construction Corporation (collectively, "MCI/Tishman") alleging negligence and strict liability. Plaintiff seeks to recover for property damages it sustained from water leaks. MCI & Tishman move for partial summary judgment against third-party defendants P.H. Mechanical Corp. ("P.H. Mechanical") and Larkin/Hathaway, Inc. ("Larkin"). MCI & Tishman seek summary judgment on their contractual indemnification and breach of contract claims on Counts I and IV of their third-party claim against P.H. Mechanical and on Counts V and VIII of their third-party claim against Larkin.
After hearing, MCI & Tishman's motion is ALLOWED in part and DENIED in part.
From the parties' submissions, the following facts are undisputed.
MCI owns the premises located at 300 Bent Street, Cambridge, MA. To renovate its space, MCI hired Tishman as the construction manager. Tishman then hired P.H. Mechanical as its subcontractor for plumbing services and installation of HVAC units which were to sit on a waterproofed concrete slab. P.H Mechanical in turn hired Larkin to construct metal angle containment areas around the HVAC units to serve as guardrails for escaped water. P.H. Mechanical was also responsible for fastening the HVAC units to the concrete slab.
On February 24, 1999, plaintiff suffered property damage to its high tech communications unit when water allegedly leaked from an HVAC unit located in the upstairs premises of MCI through the floor/ceiling onto plaintiff's equipment. The water escaped from the metal angle containment area and pierced the concrete slab on the floor/ceiling.2
Plaintiff subsequently brought suit against MCI and Tishman, who in turn filed a third-party complaint against P.H. Mechanical and Larkin. On December 29, 1999, through its general liability insurer, Tishman advised P.H. Mechanical's and Larkin's insurers in writing of its request for indemnification and defense of plaintiff's claim. P.H. Mechanical and Larkin have not responded to this request.
MCI & Tishman executed a written contract with P.H. Mechanical on October 30, 1997.3 This contract includes the following indemnification provisions. Under the definitions in the contract, P.H. Mechanical is identified as the "Contractor" while the "Indemnitee" definition includes both MCI & Tishman.
1. Article 7(a)
Article 7(a), a section containing an "Indemnity Violation of Law" annotation in its left margin provides in pertinent part the following:
7. (a) The Contractor agrees to perform the work in a safe and proper manner and so as to comply with all laws and ordinances referring to such work and will indemnify and save the Indemnitees harmless (such indemnity, as used in this Article, to include the defense of all claims made against the Indemnitees) against all penalties for violation of same and any and all costs and damages incurred in connection therewith. Wherever used in this contract, an Indemnity is referred to as being provided for the Indemnitees, said indemnity shall be extended to their respective parent companies, corporations and/or partnerships and their owned, controlled, associated, affiliated and subsidiary companies, corporations and/or partnerships and the respective agents, consultants, principals, partners, servants, officers, stockholders, directors and employees of each.
2. Article 7(b)
Article 7(b), a section accompanied by the annotation "Property Damage" in its left margin, provides the following:
(b) The Contractor hereby assumes entire responsibility for any and all damage or injury of any kind or nature to property, including adjoining property, caused by or resulting from the execution of the work or occurring in connection therewith, and agrees to indemnify and save harmless the Indemnitees from and against all claims, liabilities, damages, loss and expense incurred by or imposed upon the Indemnitees for the damage or injury to such property, however such damage or injury may be caused, whether such claims, liabilities, damages, loss or expense arise from or are caused directly or indirectly by (i) the negligence of the Contractor or any subcontractor, or the agents or employees of either of them, in the performance of work under this contract, or the use by the Contractor or any subcontractor, or the agents or employees of either of them, of any materials, tools, hoists, ladders, implements, appliances, scaffolding ways, works, machinery, or other property, or (ii) the negligence of the Indemnitees, whether attributable to a breach of statutory duty or administration regulation or otherwise, or (iii) injury or damage to property for which liability is imputed to the Indemnitees, or (iv) any other manner; provided, however, that the foregoing indemnity shall not extend to a case where such damage or injury is caused solely by the gross negligence of any of the Indemnitees. The Contractor shall be solely responsible for the safety of its work and of all equipment and materials to be used therein until final completion and acceptance of the same and shall promptly at its own expense repair any damage or injury to same, unless such damage or injury is caused solely by the gross negligence of any of the Indemnitees.
3. Article 7(c)
Article 7(c) with its accompanying "Personal Injuries" annotation provides in pertinent part the following:
(c).... The Contractor agrees to indemnify and save harmless the Indemnitees from and against all liability, damage, loss, claims, demands, actions and expenses, including but not limited to attorneys fees which arise or are claimed to arise out of or are connected with any accident or occurrence which happens, or are claimed to arise out of or are connected with any accident or occurrence which happens, or are alleged to have happened in or about the Place where such work is being performed, whether at the Site or other place, (1) while the Contractor is performing the work, either directly, or indirectly through a subcontractor of the Contractor or materials or vendors agreement, or (2) while any of the Contractor's or said subcontractor's property, work in progress, equipment or personnel are in or about such place or the vicinity thereof by reason of or as a result of the performance of work, including without limiting the generality of the foregoing, all liability, damages, loss, claims, demands and actions on account of personal injury, death or property loss to any Indemnitee, any Indemnitee's employees, agents, subcontractors or invitees, any other Contractor, its employees, agents, subcontractors or invitees, or to any other persons, whether based upon or claimed to be based upon, statutory (including, without limiting the generality of the foregoing, workers' compensation), contractual, tort or other liability of any Indemnitee, and whether or not caused or claimed to have been caused by active or inactive negligence or other breach of duty by any Indemnitee, any Indemnitee's employees, agents, subcontractors, or invitees, or any other person as long as the Indemnitor or its subcontractor or its materialman or vendor was negligent in whole or in part. In the event that 100 per cent indemnity is prohibited by the law under the Paragraph above, then the extent of indemnity under said paragraph shall be limited to the portion of the damages (whether from personal injury, death or property damage) not attributable to the percentage of negligence of the Indemnitee.
It is further agreed that if the Contractor subcontracts or delegates to others the work or any part thereof, said subcontractors and/or delegates and their agents, servants and/or employees, for the purpose of contractual indemnity only, shall all be deemed servants and/or employees of the Contractor so that any negligence on the part of the subcontractors or the delegates or their agents, servants and/or employees shall be deemed the negligence of the Contractor for purposes of indemnity under this Article 7.
It is further agreed that, if the Contractor subcontracts or delegates to others the work or any part thereof, the contractor will have the subcontractors and/or delegates agree to indemnify the Indemnitees in the same manner as the Contractor has agreed to indemnify the Indemnitees under this Article 7 and shall deliver a true copy of said agreement to the Construction Manager. In the absence of such agreement or the delivery of the same prior to the subcontractors or delegates commencing their work, the Contractor will be held liable to indemnify the Indemnitees in the same manner and to the same extent that the subcontractors and/or delegates would have been required to indemnify the Indemnitees if such agreement had been made. Whether or not the Contractor secures or delivers an agreement by the subcontractors and/or delegates to indemnify the Indemnitees as provided herein, the Contractor's independent duty to indemnify the Indemnitees pursuant to the terms of the contract shall remain in full force and effect.
The Contractor's requirements of indemnity under this Article 7 shall be read cumulatively, and no paragraph of indemnity shall be read so as to restrict in any way any other paragraph of indemnity. The purpose of these indemnity paragraphs is to give the...
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