Shea v. Bay State Gas Co.

• Decision Date: 26 June 1980
• Citation: 404 N.E.2d 683,9 Mass.App.Ct. 744
• Parties: Donna M. SHEA & another 1 v. BAY STATE GAS COMPANY et al.; 2 Camp Dresser & McKee, Inc., Third Party Defendant.
• Court: Appeals Court of Massachusetts

Page 683

404 N.E.2d 683

9 Mass.App.Ct. 744

Donna M. SHEA & another ¹ v. BAY STATE GAS COMPANY et al.; ² Camp Dresser & McKee, Inc., Third Party Defendant.

Appeals Court of Massachusetts, Norfolk.

Argued March 20, 1980.

Decided May 16, 1980.

Further Appellate Review Granted June 26, 1980.

David W. Kelley, Boston, for J. Andreassi & Son, Inc.

Francis H. Fox, Boston (S. Elaine Renfro, Boston, with him), for Camp Dresser & McKee, Inc.

Before GREANEY, PERRETTA and DREBEN, JJ.

GREANEY, Justice.

By their action brought on November 3, 1975, the plaintiffs sought damages from Bay State Gas Company and J. Andreassi & Son, Inc. (Andreassi), for personal injuries arising out of a gas explosion at 1044 Turnpike Street in Canton. Their complaint alleged that the gas company negligently maintained and serviced the gas pipe at that address and that Andreassi, a corporation "in the business of excavating and performing sewer contracting," negligently excavated, backfilled, and inspected a certain sewer system in the area, causing a gas pipe to rupture. On December 6, 1976, Andreassi filed a third-party complaint against Camp Dresser & McKee, Inc. (CDM), seeking contribution (G.L. c. 231B, §§ 1, 3; Mass.R.Civ.P. 14(a), 365 Mass. 760 (1974)) from CDM on the theory that CDM "negligently supervised, tested, inspected and examined" the construction work performed by Andreassi pursuant to CDM's contract with the town of Canton. After answering, CDM moved for summary judgment in its favor on the third party complaint, asserting that a clause in Andreassi's certificate of insurance for the project on Turnpike Street provided for Andreassi to indemnify CDM for its own concurrent negligence, thus barring any right to contribution. After considering essentially undisputed facts and documents a judge of the Superior Court allowed the motion and entered a judgment dismissing Andreassi's third party complaint. Andreassi has appealed. At argument we were informed that the principal action against Bay State Gas Company and Andreassi has been tried in the Superior Court and both defendants have been found negligent. ³ We reverse the judgment, holding that the language in the insurance certificate is not broad or precise enough to indemnify CDM against its concurrent negligence. ⁴

The facts underlying the motion are these. On or about April 26, 1973, CDM entered into a contract with the town for engineering services in connection with the construction of a sewer system on Turnpike Street. As part of its services, CDM was called upon to prepare construction plans, specifications and documents for the project, including the certificate of insurance at issue here. CDM also bound itself to provide: (a) "basic engineering services during construction of the works"; and (b) "a full-time chief resident engineer . . . full-time construction inspectors for inspection of construction and such assistants as may be needed for initial layout of the construction work in the field." Andreassi entered into a contract with the town on October 18, 1973, based on contract documents prepared or provided by CDM. The certificate of insurance which was required as part of the contract pursuant to § 8 of the Supplemental General Conditions states:

"The contractor shall at all times indemnify and save harmless the OWNER, CAMP DRESSER & McKEE Inc. and their respective officers, agents, and employees, on account of any and all claims, damages, losses, litigation, expenses, counsel fees, and compensation arising out of injuries (including death) sustained by or alleged to have been sustained by the officers, agents, and employees of said OWNER or CAMP DRESSER & McKEE Inc., or of the contractor, his subcontractors, or materialmen, and from injuries (including death) sustained by or alleged to have been sustained by the public, any or all persons on or near the work, or by any other person or property, real or personal (including property of said OWNER or CAMP DRESSER & McKEE Inc.) caused in whole or in part by the acts, omissions, or neglect of the contractor including but not limited to any neglect in safeguarding the work or through the use of unacceptable materials in constructing the work of the contractor, any subcontractor, materialman, or anyone directly or indirectly employed by them or any of them while engaged in the performance of the contract, including the entire elapsed time from the date ordered to start work or the actual start whichever occurs first until completion of the guarantee period, as certified by the OWNER or CAMP DRESSER & McKEE Inc."

CDM agreed that for purposes of the motion's disposition it was to be held equally at fault with the primary defendants for the explosion.

A contract seeking to indemnify a party against his own negligence or that of his employees is recognized as valid in Massachusetts. Woodbury v. Post, 158 Mass. 140, 144-145, 33 N.E. 86 (1893). However, for an agreement to have that effect, its language must expressly and unequivocally so provide. New York, N. H. & H. R. R. v. Walworth Co., 340 Mass. 1, 5, 162 N.E.2d 789 (1959). "It is not to be assumed in the absence of clear stipulation that a(n indemnity) contract is to be construed as creating a result so far reaching, and involving consequences which may be so hazardous and momentous." Boston & Me. R. R. v. T. Stuart & Son, Co., 236 Mass. 98, 104, 127 N.E. 532, 534 (1920). See Farrell v. Eastern Bridge & Structural Co., 291 Mass. 323, 324-325, 197 N.E. 68 (1935); Laskowski v. Manning, 325 Mass. 393, 398-399, 91 N.E.2d 231 (1950). See also Miller v. Pennsylvania R. R. Co., 236 F.2d 295, 298 (2d Cir. 1956) (under New York law the contract must express the intention beyond all doubt); Thompson-Starrett Co. v. Otis Elevator Co., 271 N.Y. 36, 41-43, 2 N.E.2d 35 (1936) (must be expressed in unequivocal terms); Cozzi v. Owens Corning Fiber Glass Corp., 59 N.J.Super. 570, 574-575, 158 A.2d 231 (1960) (construction must be required by clear and explicit language of the contract). Thus the rule that indemnity agreements "are to be fairly and reasonably construed in order to ascertain the intention(s) of the parties and to effectuate the purpose(s) sought to be accomplished" (Century Indem. Co. v. Bloom, 325 Mass. 52, 56, 88 N.E.2d 906, 908 (1949)), bends to accommodate the policy that applies a rule of strict construction to agreements which seek indemnification against one's own negligent acts.

Such clear and unequivocal language is absent from the agreement in this case. The insurance certificate was procured for Andreassi by CDM as part of the package of documents typically required of the general contractor for a job of this sort. It contains a broad spectrum of coverages for "protective," "comprehensive," "general" and "auto" liabilities (including specific coverage for explosion), and for "workmen's compensation." Doubtless Andreassi had little to say on the types, scopes, amounts and terms of the coverages. The certificate's indemnification clause contains a promise by Andreassi that it will assume primary responsibility to answer for its own negligent acts and those of its subcontractors and materialmen. There is no promise to assume responsibility for the independent negligent acts of CDM or to forego rights of contribution for those acts. Without Andreassi's promise, secondary responsibility by the sureties could not be obtained. We construe the language "caused in whole or in part by the . . . neglect of the contractor" (emphasis added) as indemnifying against negligent acts caused concurrently by Andreassi and one or more of its subcontractors or materialmen. We construe the phrase "including . . . any neglect in safeguarding the work" as extending coverage to incidents arising out of Andreassi's failure to protect third parties against potential hazards at the job site, both during and after working hours.

We reject CDM's contention that the clause is meaningless unless it is construed to provide CDM with complete indemnification against its own concurrent negligence. To be sure, CDM would have the right under common law without an agreement to compel Andreassi to indemnify it for any payments made to injured parties if Andreassi were solely at fault and CDM were not. Stewart v. Roy Bros. Inc., 358 Mass. 446, 459, 265 N.E.2d 357 (1970). Ford v. Flaherty, 364 Mass. 382, 385-386, 305 N.E.2d 112 (1973). Afienko v. Harvard Club, 365 Mass. 320, 336, 312 N.E.2d 196 (1974). However, the clause specifically provides for "injuries . . . caused in whole or in part by the acts, omissions, or neglect of the contractor" (emphasis added). If for no other reason than the fact that an indemnity clause is only as good as the indemnitor's ability to pay, CDM benefits from having the policies by obtaining assurances from solvent casualty companies that they will defend and protect CDM's interests in the event that Andreassi's promise proves to be valueless. Nor can we overlook the fact that the insurance policies were principally designed to protect the town's interests as an owner for its potential vicarious liability arising out of its nondelegable duties and the inherently dangerous nature of the work. See ...