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

• Court: Appeals Court of Massachusetts
• Writing for the Court: KASS
• 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.
• Docket Number: No. 94-P-1257,94-P-1257
• Decision Date: 06 August 1996

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.

Page 370

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 [41 Mass.App.Ct. 31] 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

Page 371

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[41 Mass.App.Ct. 32] 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...