Sciaba Const. Corp. v. Frank Bean, Inc., 95-P-1400

• Court: Appeals Court of Massachusetts
• Writing for the Court: KASS
• Citation: 43 Mass.App.Ct. 66,681 N.E.2d 288
• Parties: SCIABA CONSTRUCTION CORPORATION v. FRANK BEAN, INC. & another. 1
• Docket Number: No. 95-P-1400,95-P-1400
• Decision Date: 30 June 1997

Page 288

681 N.E.2d 288 43 Mass.App.Ct. 66 SCIABA CONSTRUCTION CORPORATION
v.
FRANK BEAN, INC. & another. ¹ No. 95-P-1400. Appeals Court of Massachusetts,
Suffolk. Argued Feb. 7, 1997.
Decided June 30, 1997.

Page 289

Owen Gallagher, Charlestown, for plaintiff.

Carol A. Griffin, Boston, for Frank Bean, Inc.

Fain P. Gildea, Brockton, for Thermal Insulation Corporation.

Before KASS, KAPLAN and GREENBERG, JJ.

KASS, Justice.

On its face, the language contained in subcontracts entered into by Sciaba Construction Corp. (Sciaba), a general contractor, and Frank Bean, Inc. (Bean), and Thermal Insulation Corp. (Thermal), subcontractors, egregiously violates [43 Mass.App.Ct. 67] G.L. c. 149, § 29C. That

Page 290

statute declared void a provision in a subcontract that requires the subcontractor to indemnify the general contractor for damages that the subcontractor did not cause. Section 29C has been the subject of much discussion of late in our cases. 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); Herson v. New Boston Garden Corp., 40 Mass.App.Ct. 779, 785-788, 667 N.E.2d 907 (1996); Collins v. Kiewit Constr. Co., 40 Mass.App.Ct. 796, 797-800, 667 N.E.2d 904 (1996); Miley v. Johnson & Johnson Orthopaedics, Inc., 41 Mass.App.Ct. 30, 31-34, 668 N.E.2d 369 (1996); Erland Constr. Co. v. Park Steel Corp., 41 Mass.App.Ct. 919, 919-920, 671 N.E.2d 953 (1996). Sciaba contends that the offending language, if examined beneath its face and in context, takes on innocent meaning. We do not think Sciaba's subcutaneous analysis persuasive and affirm the allowance by a judge of the Superior Court of a motion for summary judgment in favor of the subcontractors.

1. The accident. Sciaba had a general contract with the city of Boston to renovate the L Street Bathhouse. It let a subcontract for heating, ventilation and air conditioning to Bean which, in turn, subcontracted insulation work to Thermal. On December 28, 1987, Anthony Lusardi, an employee of Thermal, was injured at the construction site when he fell into a hole that had been covered with a sheet of plywood. Lusardi brought a third-party action (see G.L. c. 152, § 15) in Superior Court against Sciaba and Bean. Negligence issues were resolved in favor of Bean. A jury found that Sciaba had been negligent and, after Lusardi's percentage of negligence as found by the jury had been factored in (see G.L. c. 231, § 85), a judgment was entered in favor of Lusardi for $675,000, plus interest from December 26, 1990. This appeal concerns only Sciaba's claim for indemnification against Bean and Thermal.

2. The indemnity provision. First, it is well to bear in mind the pertinent text from G.L. c. 149, § 29C, inserted by St.1984, c. 484, § 43, and amended by St.1985, c. 228, § 3:

"Any provision for or in connection with a contract for construction ... which requires a subcontractor to [43 Mass.App.Ct. 68] indemnify any party for injury to persons or damage to property not caused by the subcontractor or its employees,...