Porter v. Avlis Contracting Corp.
| Decision Date | 11 February 1976 |
| Citation | 86 Misc.2d 235,381 N.Y.S.2d 595 |
| Parties | Catherine PORTER, as Administratrix of the Goods, Chattels and Credits of Gary Porter, Deceased and Catherine Porter, Individually, Plaintiff, v. AVLIS CONTRACTING CORP. and Modern Mason, Inc., Defendants. AVLIS CONTRACTING CORP., Third-Party Plaintiff, v. A. D. HERMAN CONSTRUCTION CO., INC., Third-Party Defendant. A. D. HERMAN CONSTRUCTION CO., INC., Third-Party Defendant and Fourth-Party Plaintiff, v. MODULAR STEEL SYSTEMS, INC., et al., Fourth-Party Defendants. |
| Court | New York Supreme Court |
In this wrongful death action, the jury returned a general verdict in favor of the plaintiff as against the defendant Avlis, the general contractor, in the amount of $300,000.00, and in favor of Modern Mason, the only other defendant sued by the plaintiff. The action arose out of the collapse on October 6, 1971, of a metal pre-engineered one-story factory building which was then under construction for Stokvis Multition Corp., the owner. The component parts of this building had been manufactured by Varco-Pruden, Inc., and the owner had contracted with Avlis Contracting Corp. as the general contractor.
Avlis subcontracted with Modern Mason, Inc. to do all the concrete and masonry work, and with A. D. Herman Construction Co. to erect the steel structure. A. D. Herman in turn subcontracted with Modular Steel to perform this work. The deceased was an employee of Modular Steel.
The plaintiff, as administratrix of the decedent's estate and individually, sued the defendants Avlis and Modern Mason, who cross-claimed against each other. Avlis also instituted a third party action against A. D. Herman, who in turn impleaded Modular Steel, the architect Grammas and the manufacturer Varco-Pruden. Prior to the commencement of the trial the action of Herman had been severed as against Grammas and Varco-Pruden, but not as against Modular.
On the evidence presented, the collapse of the building was attributed to at least six causes:
1. The installation of straight bolts to anchor the structure to the cement foundation, instead of L-shaped bolts.
2. The use of couplings to extend those bolts, which were short and could not be anchored without extending them because they had been placed deeper in the concrete than required.
3. The widening of the holes in the base plates where the bolts required extension so as to receive the couplings, which were wider than the bolts for which the holes had been bored.
4. The insufficiency of guy or supporting wires during the erection.
5. Failure to follow proper erection practices.
6. The high winds which had suddenly appeared shortly before the collapse occurred.
It is undisputed that Modern Mason installed the bolts in the concrete floor; that Avlis had directed their use and supplied the couplings with which to extend the short bolts; and that Avlis had directed Modular Steel to widen the base plate holes to receive the couplings. As to the questions of (1) whether straight or L-shaped bolts were installed, and (2) who installed them, the jury found that L-shaped bolts supplied by Avlis were installed by Modern Mason. The jury also found that neither the method of installation of these bolts nor the engineer's design were proximate causes of the collapse. in addition, they found that the extension of the short bolts by use of couplings was not a proximate cause.
As to the wind, the jury concluded that it was not 'of such force and velocity that it was a proximate cause'. By its remaining special findings made in response to written interrogatories, the jury found the causes of the collapse to be the following, and apportioned the fault as to each of these causes as indicated:
1. Widening of the base plate
holes 10%
2. Insufficiency of guy or
supporting wires during
construction (of which
Avlis had notice) 30%
3. Failure of Modular Steel to
follow proper erection
practices 60%
----
100%
The plaintiff's action against Avlis was primarily predicated on the claim that this general contractor had violated Section 240(1) of the Labor Law, which provides as follows:
This Court had serious reservation as to the applicability of this section to Avlis. Nonetheless, since this presented an issue of law only and not one of fact, the case was submitted to the jury on the assumption, for purposes of the charge, that this section was applicable, and that 'guy wires' were within the contemplation of 'devices' referred to in the section, subject to a postverdict determination of this issue. At the same time this Court erroneously submitted an interrogatory addressed to this issue of law. However, since the response to that interrogatory was consistent with the jury's responses to the other interrogatories, no prejudice has resulted and no doubt or uncertainty has been cast on any of the other findings.
By reason of the Court's reservation of its decision as to the applicability of Section 240 of the Labor Law, and the motions made by Avlis and A. D. Herman for dismissal of the plaintiff's complaint on the ground that this section was not applicable, there is presented for the Court's determination the question of the applicability of Section 240. There are also presented for determination herein the cross-claims of Avlis against A. D. Herman for common law and contractual indemnification, and the similar cross-claims of A. D. Herman against Modular Steel. Before proceeding to the determination of the issue of applicability of the Labor Law provision, the Court will initially consider these cross-claims, assuming without specifically so finding that the provision is applicable.
Avlis predicates its claim for contractual indemnification against A. D. Herman on the following indemnity provision in the contract between them:
A. D. Herman acknowledges its responsibility to indemnify Avlis for that portion of the verdict resulting from the apportionment of 60% Of the fault to Modular's failure to follow proper erection practices, but disclaims any responsibility for the 10% Portion of the claim predicated on Avlis' own negligence in widening the base holes, and for that part of the 30% Portion of the claim attributable to Avlis' own negligence in failing to do anything with respect to the insufficient guy or supporting wires, of which it had notice. With respect to this latter disclaimer, A. D. Herman urges that the Court further apportion the 30% Of the fault attributed by the jury to the insufficient guy wires as between (1) Avlis' failure to do anything with respect to these guy wires, and (2) Modular's failure to properly install them, and as a result limit A. D. Herman's obligation with respect to this item solely to that percentage of the fault attributable to Modular's installation of the insufficient guy wires.
With respect to the widening of the base plate holes and Avlis' failure to take any action as to the insufficient guy wires, the jury found 'active' negligence in pre-Dole terms and 'primary' negligence against Avlis. Whatever the characterization, Avlis is a tortfeasor and is not merely derivatively liable, and its respective degree of fault must be weighed and determined, unless a valid agreement for contractual indemnity modifies this rule. Rogers v. Dorchester Assoc., 32 N.Y.2d 553, 564--565, 347 N.Y.S.2d 22, 30, 300 N.E.2d 403, 408; Margolin v. N.Y. Life Ins. Co., 32 N.Y.2d 149, 344 N.Y.S.2d 336, 297 N.E.2d 80.
In advancing its disclaimers A. D. Herman relies on the principle of law enunciated in Thompson-Starrett Co. v. Otis Elevator Co., 271 N.Y. 36, 41, 2 N.E.2d 35, 37 (1936), as follows:
'It is a general rule long established that contracts will not be construed to indemnify a person against his own negligence unless such intention is expressed in unequivocal terms.'
Avlis contends that the language of the indemnity clause is clear and unambiguous, and unequivocally expresses the intention of the parties that Avlis was to be held harmless from all claims arising from the work involved in the contract even if such claims resulted from Avlis' direct negligence.
In Margolin v. N.Y. Life Ins. Co., supra, the Court, in holding that the contractual indemnity provision contained a clear expression of the unequivocal intention of the parties that the third-party defendant assumed the entire risk of any liability arising from its work, found that the insurance company was entitled to indemnification from the third-party defendant for its...
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