M. DeMatteo Const. Co. v. A.C. Dellovade, Inc., 94-P-828
| Court | Appeals Court of Massachusetts |
| Citation | 39 Mass.App.Ct. 1,652 N.E.2d 635 |
| Docket Number | No. 94-P-828,94-P-828 |
| Parties | M. DeMATTEO CONSTRUCTION COMPANY v. A.C. DELLOVADE, INC. 1 |
| Decision Date | 26 September 1995 |
Page 635
v.
A.C. DELLOVADE, INC. 1
No. 94-P-828.
Middlesex.
Decided July 27, 1995.
Further Appellate Review Denied Sept. 26, 1995.
Page 636
[39 Mass.App.Ct. 2] James K. Kaufmann, Andover, for plaintiff.
John J. McGivney, Boston, for defendant.
Mark E. Tully & U. Gwyn Williams, Boston, for Wheelabrator Air Pollution Control, Inc., amicus curiae, submitted a brief.
Before KASS, SMITH and LAURENCE, JJ.
KASS, Justice.
At issue is the enforceability of an indemnification provision in a written agreement for construction services between M. DeMatteo Construction Co. (DeMatteo), a general contractor, and A.C. Dellovade (Dellovade), a subcontractor. DeMatteo hired Dellovade to perform roofing and siding work on a building in Saugus owned by Refuse Energy Systems Company. On December 24, 1990, an ironworker employed by Dellovade, Gary DeSousa, fell after stepping to a lower section of the roof, where he had been making repairs, onto an "improperly set" metal beam. DeSousa was hurt and brought a tort action against DeMatteo and Wheelabrator Air Pollution Control, Inc., another subcontractor, for negligent maintenance of the work site. DeMatteo, in turn, served a third-party complaint on Dellovade to enforce an indemnification provision (Article IV) contained in its subcontract with Dellovade.
Dellovade moved for judgment on the pleadings, Mass.R.Civ.P. 12(c), 365 Mass. 756 (1974), on the ground that Article IV was "void" under G.L. c. 149, § 29C. DeMatteo opposed the motion and simultaneously requested judgment on the basis of the contract language. By this time, DeMatteo had offered an affidavit and exhibits in support of its position, and we may take its cross motion as having been made under Mass.R.Civ.P. 56, 365 Mass. 824 (1978). A Superior Court judge denied Dellovade's motion and allowed DeMatteo's, interpreting the contractual language as valid and enforceable under the statute. A single justice of this court granted Dellovade leave to take an interlocutory appeal under G.L. c. 231, § 118, and stayed further proceedings in the trial court. We affirm.
[39 Mass.App.Ct. 3] Under G.L. c. 149, § 29C, a general contractor may require indemnification by a subcontractor only in connection with harm "caused by" the subcontractor, its employees, agents, or subcontractors. Harnois v. Quannapowitt Dev., Inc., 35 Mass.App.Ct. 286,...
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