Miller v. Hall Bldg. Corp.

• Decision Date: 13 December 1985
• Citation: 210 N.J.Super. 248,509 A.2d 316
• Parties: Rickey L. MILLER, Plaintiff, v. HALL BUILDING CORP., Defendant/Third Party Plaintiff, v. BEE GEE MASONRY, INC., Third Party Defendant and Defendant/Third Party Plaintiff, v. RAYMOND INTERNATIONAL, Third Party Defendant.
• Court: New Jersey Superior Court

Page 248

210 N.J.Super. 248

509 A.2d 316

Rickey L. MILLER, Plaintiff, v. HALL BUILDING CORP., Defendant/Third Party Plaintiff, v. BEE GEE MASONRY, INC., Third Party Defendant and Defendant/Third Party Plaintiff, v. RAYMOND INTERNATIONAL, Third Party Defendant.

Superior Court of New Jersey, Law Division,

Monmouth County.

Decided Dec. 13, 1985.

Joseph DeDonato, Livingston, for defendant/third party plaintiff Hall Building Corp. (Morgan, Melhuish, Monahan, Arvidson, Abrutyn & Lisowski, Livingston, attorneys).

Paul Mancuso, Westfield, for third party defendant and third party plaintiff Bee Gee Masonry, Inc. (DiRienzo & Ruotolo, Westfield, attorneys).

MILBERG, A.J.S.C.

Third-party defendant Bee Gee Masonry, Inc. seeks an Order for Summary Judgment on the grounds that defendant Hall Building Corporation's claims for contribution and indemnification are barred by statute and common law.

This action involves a claim for personal injuries sustained by plaintiff Rickey L. Miller on October 20, 1982 when he fell through an open skylight on the roof of a building under construction at the Earle Naval Weapons Station in Colts Neck, New Jersey.

At that time plaintiff was employed as a laborer by Bee Gee Masonry, Inc. Bee Gee had been hired by defendant Hall Building Corporation to perform the masonry work in connection with the construction of the building in question under an agreement executed on March 29, 1982.

Plaintiff brought a worker's compensation claim against Bee Gee and, on July 10, 1984, an Order of Judgment was entered awarding benefits to plaintiff under the Worker's Compensation Act.

On September 10, 1984, plaintiff commenced this action against Hall Building Corporation; Hall, in turn, filed a third-party complaint against Bee Gee asserting claims for contribution, common-law indemnification and contractual indemnification.

Bee Gee now seeks summary judgment dismissing Hall's contribution claim on the ground that it is barred due to plaintiff's recovery of worker's compensation benefits; dismissing the common-law indemnification claim on the ground that Hall was actually liable; and dismissing the claim for contractual indemnification on the ground that the indemnity clause in the contract is unenforceable under N.J.S.A. 2A:40A-1, as that section existed at the time the contract was executed in 1982.

In opposition to the motion, Hall asserts that the indemnity clause is enforceable under N.J.S.A. 2A:40A-1 as it is presently written, and urges that the present section be given retroactive effect.

The facts are not in dispute. The sole question is whether Bee Gee Masonry is entitled to summary judgment as a matter of law.

It is well settled that a defendant in a tort action brought by an employee may not join the employer as a third-party defendant in order to seek contribution from him as a joint tortfeasor. See Public Service Electric & Gas Co. v. Waldroup, 38 N.J.Super. 419, 437, 119 A.2d 172 (App. Div.1955); Arcell v. Ashland Chemical Co., 152 N.J.Super. 471, 483-484, 378 A.2d 53 (Law Div.1977). To allow such a third-party claim would effectively hold the employer liable to the employee for negligence, which is expressly prohibited by the Worker's Compensation Act. Id. at 484, 378 A.2d 53.

For the same reason, a third party is not entitled to implied indemnification from the employer, Id. at 488-489, 378 A.2d 53, unless there exists a "special legal relationship" between the parties. See Hagen v. Koerner, 64 N.J.Super. 580, 166 A.2d 784 (App.Div.1960). The contractual relationship between the parties is not enough, in itself, to establish the type of relationship from which an implied obligation to indemnify might arise. See Arcell, supra, 152 N.J.Super. at 490, 378 A.2d 53.

In any event, it is clear that Hall, as the general contractor, had the primary responsibility for protecting the opening on the roof through which plaintiff fell. See Thomas Moraca, Inc. v. J.B. Burell Company, 423 F.2d 1209 (3d Cir.1970). Accordingly, Hall's liability, if any, would be primary; and it is well settled that indemnity may not be obtained by a party who has been at fault, absent an express indemnification agreement. Id.; see Cartel Capital Corp. v. Fireco of New Jersey, 81 N.J. 548, 566, 410 A.2d 674 (1980); Public Service Electric & Gas Co., supra, 38 N.J.Super. at 432, 119 A.2d 172.

What remains, then, is the express indemnification clause in the contract between Hall Building and Bee Gee Masonry. The clause provides that Bee Gee:

agrees to indemnify and save harmless the ... general contractor ... against loss or expense by reason of the liability imposed by law upon ... general contractor ... for damage because of bodily injuries ... accidentally sustained by a person ... arising out of or on account of or in consequence of the performance of this Contract, whether or not such injuries to persons ... are due or claimed to be due to any negligence of the subcontractor....

At the time the contract was executed, N.J.S.A. 2A:40A-1 provided that "a ... promise ... relative to the construction ... of a building ... purporting to indemnify or hold harmless the promisee against liability for damages arising out of bodily injury to persons or damage to property is against public policy and is void and unenforceable." The effect of this provision, enacted by L. 1981, c., 317, was to invalidate all hold harmless or indemnification clauses in construction contracts as against public policy. It is undisputed that the subject indemnity clause would be unenforceable under former Section 2A:40A-1.

However, the present section, as amended by L. 1983, c. 107 § 1 (eff. 3/14/83), prohibits only those indemnification clauses which purport to indemnify for "the sole negligence of the promisee." Under the section as amended, therefore, the parties' indemnity clause clearly would be enforceable.

The issue, then, is whether the present Section 2A:40A-1 should be given retroactive effect, as Hall Building urges. No reported decision has addressed this question.

The general rule of statutory construction favors the prospective application of statutes. Gibbons v. Gibbons, 86 N.J. 515, 521, 432 A.2d 80 (1981). There are, however, three exceptions which permit retroactive application of statutes or their amendments: (1) where the Legislature has expressly or implicitly indicated that the statute be applied retroactively, Id. at 522, 432 A.2d 80; (2) where the statute is ameliorative or curative, Id. at 523, 432 A.2d 80; and (3) in the absence of legislative intent that the statute is limited to prospective application, where such considerations as the expectations of the parties warrant retroactive applications, Id. See Communications Workers v. Public Employment Relations Commission, 193 N.J.Super. 658, 663-664, 475 A.2d 656 (App.Div.1984).

Here, there is no expression of legislative intent that the amended statute be limited to prospective application. Rather, the legislative history demonstrates that the amendment was intended to improve the statutory scheme in existence and, indeed, to clarify the purpose behind the...