Silva v. Productions

Decision Date11 June 2017
Docket NumberDocket: 2016-00512
CourtMassachusetts Superior Court

Dates: June 11, 2017

Present: MICHAEL D. RICCIUTI, Justice of the Superior Court


This matter involves an October 3, 2014 worksite accident in which the plaintiff, Timothy Silva ("Silva"), an employee of Clover Paving Company, Inc. ("Clover"), was injured during a parking lot paving project ("the Project"). Rochester Bituminous Products, Inc. ("Rochester") was hired to perform paving at the Project and retained Clover in connection with it. Silva filed a Complaint alleging negligence against Rochester. Rochester then filed a Third-Party Complaint, naming Clover as a third-party defendant.

The matter is before the Court on Clover's Motion for Summary Judgment as to Rochester's Third-Party Complaint. Rochester opposes. For the reasons which follow, Clover's Motion for Summary Judgment is ALLOWED.


The following relevant facts are either undisputed or presented in the light most favorable to the non-moving party, in accordance with the dictates of Mass. R. Civ. P. 56.

Both Rochester and Clover are Massachusetts corporations. Rochester's business included the manufacture and sale of asphalt to paving contractors and the installation of asphalt for construction projects.

Rochester was hired to perform paving work on a project located in Cranston, Rhode Island ("the Project"). As a business model, Rochester attempted to secure multiple paving contracts, then contracted out the installation work to paving subcontractors if it lacked adequate staffing to perform the work itself Rochester generally retained subcontractors that routinely purchased asphalt from Rochester and maintained an outstanding balance on account. In engaging these subcontract agreements, Rochester either met with the subcontractor's principal at Rochester's Massachusetts offices or the parties discussed the subcontract by telephone. Clover served as a subcontractor for Rochester in this manner on at least three different jobs. Rochester also entered into an unwritten agreement with Clover through which Clover performed paving work at the Project.

Rochester claims that it "required that each subcontractor would take all steps to protect Rochester from being sued as the result of the subcontractor's work." Clover disputes this. Clover also disputes Rochester's claim that it would never direct Clover's employees regarding how to perform work on the jobsite.

At all relevant times, Silva was an employee of Rochester. During the course of his work on the Project, Silva was injured when he was struck by a compaction vehicle operated by another Clover employee. As a result of his injuries, Silva received worker's compensation benefits from Clover's insurer under Massachusetts worker's compensation law.


Clover's Motion for Summary Judgment initially argued that Rhode Island law should apply to this case. Rochester's Opposition argued that Massachusetts law controlled. In its reply brief, Clover concedes (at least for purposes of this motion) that Massachusetts law applies to the analysis of this case.2

Summary judgment is appropriate when the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56(c); see also DuPont v. Commissioner of Corr., 448 Mass. 389, 397 (2007). The moving party bears the initial burden of demonstrating that there is no triable issue and he or she is entitled to judgment. Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 644 (2002), citing Pederson v. Time, Inc., 404 Mass. 14, 17 (1989); Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706, 716 (1991). In reviewing a motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party and draws all reasonable inferences in its favor. Jupin v. Kask, 447 Mass. 141, 143 (2006), citing Coveney v. President & Trs. of the Coll, of the Holy Cross, 388 Mass. 16 (1983); see also Simplex Techs., Inc. v. Liberty Mut. Ins. Co., 429 Mass. 196, 197 (1999).

A. Contribution

Contribution may be recoverable where two or more parties become jointly liable for the same injury to person or property, and only one of the liable parties is sued. G. L. c. 231B, § 1; O'Mara v. H.P. Hood & Sons, Inc., 359 Mass. 235, 237 —238 (1971). However, there is no right to contribution from a party who is not "liable in tort" due to a special status or personal defense, even if that party was at fault. Berube v. City of Northampton, 413 Mass. 635, 638 — 639 (1992). As one such defense, there is no right to contribution against an employer whose negligence contributed to an employee's injury but who is discharged from liability to the employee per the Massachusetts Workers' Compensation Act ("WCA"). Liberty Mut. Ins. Co. v. Westerlind, 374 Mass. 524, 525 — 526 (1978). Per the WCA's exclusivity provision, G. L. c. 152, §23, an employer is released from all tort liability to an employee who is eligible for and receives compensation benefits. Id. Thus, if an employer has paid benefits to an employees under the WCA, they can no longer been deemed "liable in tort" for purposes of contribution.

Based upon the summary judgment record, it is undisputed that Silva received WCA benefits from its employer, Clover. As such, Clover has been released and is not "liable in tort" for Silva's accident. By function of a statutory exclusion, Rochester cannot receive contribution from Clover in light of the WCA. As such, there is no factual question regarding the respective fault of Clover and Rochester in this case. Accordingly, Clover is entitled to summary judgment on Rochester's claims for contribution.

B. Indemnification

The parties dispute whether Clover is required to indemnify Rochester for the accident. "[A] third-party tortfeasor may recover indemnity from an employer [which has paid worker's compensation benefits] only if the employer had expressly or impliedly contracted to indemnify the third party or if the employer and the third party stand in a relationship that carries with it the obligation to indemnify the third party." Liberty Mut. Ins. Co. v. Westerlind, 374 Mass. 524, 526 (1978); Decker v. Black & Decker Mfg. Co., 389 Mass. 35, 37 (1983) ("any right of a third-party tortfeasor to recover indemnity from an employer who has paid workmen's compensation benefits to an injured employee, must stem ... from an express or implied contract of indemnity or from an obligation implied from the relationship of the parties").

In this case, Rochester argues that the contract to provide indemnity was express. In support of its claim, Rochester contends it had an oral indemnification agreement with Clover under which Clover was to "take all steps to protect Rochester from being sued as a result of [Clover's] work," and thus Clover must indemnify Rochester. The precise facts regarding this alleged oral agreement are in dispute. Nevertheless, Clover argues that even if Rochester view of the facts is correct, it cannot prevail as a matter of law. Clover claims that under G. L. c. 149, §29C, "[a]ny provision for or in connection with a contract for construction. . . which requires a subcontractor to indemnify any party for injury to persons or damage to property not caused by the subcontractor or its employees, agents or subcontractors, shall be void." Thus, Clover argues that "a contractual obligation to indemnify is void whenever it provides for indemnification by a subcontractor regardless of fault of the indemnitee, or its employees, agents or subcontractors, and this is so even if the indemnitee could prove at trial that the injured employee of the subcontractor was negligent." Harnois v. Quannapowitt Development, Inc., 35 Mass. App. Ct. 286, 288 (1993), interpreting G. L. c. 149, §29C. Rochester counters that the alleged express indemnification agreement does not violate the statute because it required subcontractors to protect "Rochester from being sued as a result of the subcontractor's work."

Even assuming Rochester's view of the facts, its argument fails as a matter of law, as the indemnification contract is overbroad and therefore void under the statute. "A contractual obligation to indemnify is void under G.L. c. 149, §29C, if it provides for the possible indemnification by a subcontractor regardless of the fault of the indemnitee or its employees, agents, or subcontractors." MacFarland v. RCS Grp., Inc., 65 Mass. App. Ct. 1123 at *2 (2006) (unpublished decision) (citations omitted, emphasis added). Indeed, an indemnification provision which requires a subcontractor to indemnify where it has been "alleged" to be negligent (as opposed to have "caused" by the subcontractor) is overbroad under the statute; as MacFarland held:

The "alleged to have been caused by"...

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