Miley v. Johnson & Johnson Orthopaedics, Inc., 94-P-1257

• Decision Date: 06 August 1996
• Docket Number: No. 94-P-1257,94-P-1257
• Citation: 41 Mass.App.Ct. 30,668 N.E.2d 369
• Parties: John T. MILEY v. JOHNSON & JOHNSON ORTHOPAEDICS, INC., & others 1 ; S & F Concrete Contractors, Inc., & another, 2 Third-Party Defendants.
• Court: Appeals Court of Massachusetts

Page 369

668 N.E.2d 369

41 Mass.App.Ct. 30

John T. MILEY v. JOHNSON & JOHNSON ORTHOPAEDICS, INC., & others ¹ S & F Concrete Contractors, Inc., & another,² Third-Party Defendants.

No. 94-P-1257.

Appeals Court of Massachusetts,

Middlesex.

Argued April 9, 1996.

Decided Aug. 6, 1996.

Susan M. Goldfischer, for The Carlson Corporation-Northeast.

Myles W. McDonough, Boston, for Johnson & Johnson Orthopaedics, Inc.

Natasha C. Lisman, Boston, for S & F Concrete Contractors, Inc.

Clyde K. Hanyen, Jr., Brockton, for North Shore Mechanical Contractors, Inc.

Before PERRETTA, KASS and JACOBS, JJ.

KASS, Justice.

We are asked again to explore the limits of indemnity obligations by subcontractors to general contractors and owners. On December 20, 1989, John Miley delivered plumbing supplies to North Shore Mechanical Contractors, Inc. (North), the plumbing subcontractor on a job in Raynham, for which The Carlson Corporation-Northeast (Carlson) was the general contractor. The owner of the project was Johnson & Johnson Orthopaedics, Inc. (Johnson). While performing his mission, Miley fell on a cement floor over which a thin layer of snow had accumulated. The floor had been laid by the fifth player in the drama, S & F Concrete Contractors, Inc. (S & F).

Miley brought a negligence action against Johnson and Carlson, later amending his complaint to include claims against S & F and North Shore. Carlson, in turn, brought third-party indemnification claims against North and S & F, based on § 9 of their respective subcontracts with Carlson. A judge of the Superior Court granted summary judgment to all four defendants as to Miley's claims on the ground that the undisputed facts generated by the summary judgment materials disclosed nothing other than natural accumulation of snow. See Sullivan v. Brookline, 416 Mass. 825, 827, 626 N.E.2d 870 (1994). Carlson pressed the third-party indemnity claims against North and S & F. The judge dismissed the cross complaint of Carlson as moot. As to Johnson, he denied a postjudgment motion to file a similar cross complaint. His rationale for both orders was that there was no underlying liability, i.e., nothing for which to indemnify Johnson and Carlson. Miley took an appeal but, before argument, settled for an aggregate $10,000 with Carlson, North, and S & F.

What owner, contractor, and the two subcontractors are still litigating is not so much the burden of the $10,000, but whether North and S & F, under their subcontracts, are bound to indemnify the contractor and the owner for their legal expenses. ³ To say, as the subcontractors insist, ⁴ that the question of their indemnity is moot begs the basic question: does the indemnity clause in the subcontracts extend to legal expenses of the indemnitees, the owner, and general contractor, when it has been established by final judgment that the indemnitees owe nothing to the plaintiff, i.e., when the indemnitees have suffered no loss? ⁵

Section 29C of c. 149 of the General Laws, the text of which appears in the margin, ⁶ was enacted to curtail the extent of the indemnity provisions that general contractors required of subcontractors. See Jones v. Vappi & Co., 28 Mass.App.Ct. 77, 81-82, 546 N.E.2d 379 (1989); 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, 611-612, 634 N.E.2d 134 (1994); M. DeMatteo Constr. Co. v. A.C. Dellovade, Inc., 39 Mass.App.Ct. 1, 3-4, 652 N.E.2d 635 (1995); Musacchio, Statutory Limitations on Indemnity Agreements in Construction Contracts: The Meaning and Effect of G.L.M. c. 149, § 29C, 80 Mass.L.Rev. 54, 55 (1995). In those cases, and here, the words in the statute that require our attention are: "not caused by the subcontractor or its employees, agents or subcontractors."

In text, § 9--the indemnity clause of the subcontract form that Carlson used with its subcontractors--undertook to meet the prohibition of § 29C. "Subcontractor shall," it begins, and then, making a bow to § 29C, says "to the fullest extent permitted by law and to the extent any such claims, losses, liabilities or expenses are caused in whole or in part by any act or omission of Subcontractor...." Toward the end of the section, which is cast as one sentence, the text presses the limits of § 29C by imposing indemnity obligations for "any and all claims, losses, liabilities and expenses, including attorney's fees, arising out of or in any manner caused by, connected with or resulting from Subcontractor's performance of this Subcontract or the presence of Subcontractor or Subcontractor's employees and/or agents at the Project site." ⁷

As the case stands before us, with final judgment in favor of all defendants, neither subcontractor is in breach of any duty to the man who slipped and fell. The accident occurred because of something with which North and S & F had nothing to do, i.e., the natural accumulation of snow. Nothing is left for imposing liability upon the subcontractors except that they were there. On a "but for" analysis it is possible to say that, had North not been on the job site, Miley, the deliveryman, would not have walked onto the floor on which he fell. To make presence alone the basis for indemnity, however, steps over the limit that the Legislature set in G.L. c. 149, § 29C. From the proscription in the statute of indemnity for injury or damage "not caused by the subcontractor" (emphasis supplied), the obverse proposition follows that the subcontractor may be bound to indemnify "up the line" only if the subcontractor does or does not do something to bring about the injury or damage. In its statutory context, the word "cause" must be taken to mean some action (dropping a pipe on the deliveryman's foot) or inaction (leaving an unnatural ice patch in the delivery path) that provokes the mishap. Otherwise, the statute is nullified, and the subcontractors, just by signing up for the subcontract and coming on the job site, are bound to indemnify "come what may," a standard described as offensive to the statute in M. DeMatteo Constr. Co. v. A.C. Dellovade, Inc., 39 Mass.App.Ct. at 4, 652 N.E.2d 635.

The owner and general contractor argue that, even were it to be established, as we have decided, that there is no causal link between the subcontractors and the accident (and...