Secallus v. Muscarelle

• Decision Date: 29 January 1991
• Citation: 245 N.J.Super. 535,586 A.2d 305
• Parties: Gary SECALLUS, Plaintiff, v. Joseph L. MUSCARELLE, a/k/a Joseph L. Muscarelle and Sons, Inc., a New Jersey Corporation, Defendant-Third Party Plaintiff, v. STEEL STRUCTURES CORPORATION and Dow Jones & Co., Inc., Third-Party Defendants.
• Court: New Jersey Superior Court — Appellate Division

Page 535

245 N.J.Super. 535

586 A.2d 305

Gary SECALLUS, Plaintiff, v. Joseph L. MUSCARELLE, a/k/a Joseph L. Muscarelle and Sons,

Inc., a New Jersey Corporation, Defendant-Third

Party Plaintiff, v. STEEL STRUCTURES CORPORATION and Dow Jones & Co., Inc.,

Third-Party Defendants.

Superior Court of New Jersey Appellate Division.

Submitted Jan. 8, 1991.

Decided Jan. 29, 1991.

Brian Granstrand, atty. for defendant-third-party plaintiff (Donald M. Gesicki, on the brief).

Colquhoun & Colquhoun, attys. for third-party defendant Steel Structures Corp. (Robert F. Colquhoun, II, on the brief).

Before Judges ANTELL, SCALERA and KEEFE.

The opinion of the court was delivered by

ANTELL, P.J.A.D.

Plaintiff was employed by Steel Structures Corporation, a subcontractor on a building construction job of which defendant Joseph L. Muscarelle and Sons, Inc., was the general contractor. After plaintiff brought this negligence action against Muscarelle for a work-connected personal injury, Muscarelle filed a third-party complaint against Steel Structures for indemnification pursuant to Steel Structures's contractual obligation to indemnify Muscarelle against loss or expense for personal injury

sustained by any person or persons or on account of damage to property arising out of or in consequence of the performance of this Subcontract, whether such injuries to persons or damage to property are due or claimed to be due to any negligence of the Subcontractor, the Owner, the Contractor, its or their employees or agents or any other person.

Muscarelle now appeals from orders dated May 26, June 21 and June 29, 1989, granting summary judgment in favor of Steel Structures, denying Muscarelle's motion for summary judgment, and denying Muscarelle's motion for reconsideration.

The orders under review were based upon N.J.S.A. 2A:40A-1. That statute provides:

A ... promise ... [or] agreement ... relative to the construction ... of a building ... purporting to indemnify or hold harmless the promisee against liability for damages arising out of bodily injury ... caused by or resulting from the sole negligence of the promisee ... is against public policy and is void and unenforceable; provided that this section shall not affect the validity of any insurance contract, workmen's compensation or agreement issued by an authorized insurer.

Muscarelle argues that the indemnification provision herein does not come within the invalidity language of the foregoing statute, relying upon Grippo v. Schrenell and Co., 223 N.J.Super. 154, 538 A.2d 404 (App.Div.1988), and Miller v. Hall Bldg. Corp., 210 N.J.Super. 248, 509 A.2d 316 (Law Div.1985). We agree and reverse.

In reaching its decision the trial court reasoned that because the contract purports to indemnify against liability resulting from the sole negligence of Muscarelle the entire indemnification provision is made void and unenforceable by the statute. We read the enactment differently. What it says is that the promise to indemnify against sole negligence is void. While the contractual provision herein requiring Steel Structures to indemnify for "any negligence" of Muscarelle clearly encompasses sole negligence, it also encompasses negligence for which Muscarelle is answerable jointly with others. Although the promise or agreement to indemnify for sole negligence is unenforceable, the indemnification agreement is viable as to Muscarelle's liability for damages caused in part by the negligence of others than Muscarelle.

The incongruity of our result does not escape us. What we have said is that a promise to indemnify for sole negligence is unenforceable, whereas a promise to indemnify for 99% negligence may be enforced. Yet this is precisely what is called for by the plain and unmistakable language of the statute by which we are...