Opinion
2984/04.
Decided on September 28, 2007.
Anthony Monaco, Esq., Monaco Monaco, LLP, Plaintiff.
Robin, Harris, King, Yuhas, Fodera, Richman, Defendants.
Jones Hirsch Connor Bull, P.C.
James E. Forde, Esq., Thacher, Proffitt Wood, LLP.
Upon the forgoing papers third-party defendant Amertech Industries, Inc. (Amertech) seeks summary judgment, pursuant to CPLR 3212, dismissing the common-law and contractual indemnification claims made against it by defendant/ third-party plaintiff Reliant Energy, Inc. (Reliant) and defendant/ third-party co-defendant AAR Engine Components Services (AAR).
The instant action was commenced by plaintiff Elsayed Eldoh after he sustained personal injuries on January 27, 2003 during the course of his employment with Amertech, as a turbine mechanic. At the time of the accident plaintiff was performing work on a barge located at Reliant's Narrows Generating Station, in Kings County. The property was owned by defendants/ third-party plaintiffs/ second third-party plaintiffs Astoria Generating Co. (Astoria) and Reliant. Reliant and Astoria entered into a written contract with AAR for, inter alia, the overhaul and repair of Turbine 2-5 located at the Narrows Generating Station. AAR, in turn, contracted with Amertech to provide skilled laborers for the work.
Plaintiff fell while performing repairs to Turbine 2-5 and commenced the instant action against Astoria, Orion Power Holdings, Inc. (Orion), Reliant and AAR. Defendants Astoria, Orion and Reliant commenced a third-party action against AAR, Amertech and Gulf Underwriters Insurance Company, seeking contribution and contractual and common-law indemnification. AAR cross-claims against both Reliant and Amertech for similar relief.
Amertech now seeks summary judgment dismissing all claims against it for contribution and indemnification. Amertech contends that such claims are bared by Section 11 of the Workers' Compensation Law insofar as plaintiff did not suffer a "grave injury", as define by the statute, and as no written agreement requires Amertech to indemnify either AAR or Reliant.
The record reveals that on or about January 2, 2003, Amertech verbally agreed to provide skilled labor to AAR for the Reliant project. During the preceding seven years Amertech regularly provided skilled labor to AAR for turbine repairs and overhauls. Generally, to initiate the process AAR contacted Amertech, which would verbally agree to provide the required labor. As evidence of the agreement, at some point during the work, AAR would fax to Amertech a purchase order specifying the cost of labor for each component of the work. Amertech would be paid in accordance with the information contained on the purchase order. In connection with the Reliant project, AAR faxed to Amertech four purchase orders on January 7, 2003 and six purchase orders on January 28, 2003.
Common-Law Indemnification
The Workers' Compensation Law limits third party claims for common-law indemnity and contribution against employers in personal injury actions to cases in which the employee, acting within the scope of his or her employment, sustained a statutorily enumerated "grave injury" (Workers' Compensation Law § 11; Castillo v 711 Group, Inc. ,41 AD3d 77, 79, citing Castro v United Container Mach. Group, Inc., 96 NY2d 398, 401; see also Angwin v SRFP Partnership, L.P., 285 AD2d 568, 569). Section 11 of the Workers' Compensation Law defines "grave injury" as follows:
"death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability."
The enumerated injuries were "deliberately both narrowly and completely described" by the legislature ( Castillo, 41 AD3d at 79, quoting Workers' Compensation Law, 1996 NY Legis. Ann. at p. 460). In addition, it is well settled that the statutory list is intended to be "exhaustive, [and] not illustrative" ( Castillo, 41 AD3d at 79; Dunn v Smithtown Bancorp, 286 AD2d 701, 702). Thus, the court must read the statute's language without resort to forced or unnatural interpretations ( Castillo, 41 AD3d at 79).
In order to establish entitlement to summary judgment, on this claim, the movant must prove by the submission of competent evidence that the plaintiff did not sustain a "grave injury" within the meaning of Workers' Compensation Law § 11 ( Fitzpatrick v Chase Manhattan Bank, 285 AD2d 487, 488; see also Gaddy v Eyler, 79 NY2d 955; Licari v Elliott, 57 NY2d 230). The burden then shifts to the opponent of such motion to raise a triable issue of fact in this regard ( Fitzpatrick, 285 AD2d at 488). Here, in support of its motion, Amertech submits the plaintiffs Bill of Particulars, verified by his attorney. The submission of a verified bill of particulars, in support of such a summary judgment motion, has been found to be sufficient to establish a prima facie case ( Marshall v Arias , 12 AD3d 423, 424; Spiegler v Gerken Bldg. Corp. , 35 AD3d 715, 717; Angwin, 285 AD2d at 569).
The accident occurred when plaintiff fell into an opening created when Turbine 2-5, which was being overhauled, was removed. Plaintiffs bill of particulars alleges that as a result of the fall he suffered injuries, including, but not limited to: contusions to the cervical spine requiring surgical repair; three additional surgeries to repair traumatic cervical contusions, sprains and derangements; traumatic cervical derangement and sprain; numbness of the upper left and lower right extremities and instability of the cervical spine. The bill of particulars alleges that following the accident plaintiff was confined to bed for approximately two hundred forty days and to Lutheran Hospital Center for one hundred and twenty days. Plaintiff alleges that he suffered a "total disability." The claimed injuries, which generally include injuries to the cervical spine, extremities and shoulder, do not constitute "grave" injuries ( Angwin, 285 AD2d at 569 [cerebral concussion and exacerbation of a herniated cervical disc]; Spiegler, 35 AD3d at 717 [back injuries]; Marshall, 12 AD3d at 424 [neck and back injuries]). Moreover, while "grave injury" includes a "permanent total disability," this only applies to "an acquired injury to the brain caused by an external physical force" (Workers' Compensation Law § 11) which results in "unemployability in any capacity" ( Rubeis v Aqua Club, Inc. , 3 NY3d 408, 417). Plaintiffs bill of particulars does not allege any injury to the head or brain. Thus, Amertech makes a prima facie showing that plaintiff did not sustain a "grave injury."
AAR fails to submit evidence or arguments in opposition to the portion of Amertech's motion seeking dismissal of its cross-claim for common-law contribution. Third-party plaintiff Reliant also fails to submit opposition to Amertech's motion. Plaintiff, in opposition, supplies the sworn report of Workers' Compensation physician, Dr. Donald H. Frank. Dr. Frank indicates that plaintiff suffered a total temporary disability due to his cervical injuries, which resulted in an extensive spinal surgery with major complications and that plaintiff has a persistent instability of his cervical spine. However, contrary to the plaintiffs assertion, this medical report does not reflect that plaintiff is unable to walk. Rather, the report indicates that plaintiff reported to the doctor difficulty walking due to numbness and pain in his lower back. Dr. Frank reported, however, that plaintiff had a normal gait with full range of motion of all extremities, including flexion, extension, abduction, adduction and rotation. Further, although the bill of particulars alleges a possible loss of use of the injured body parts and plaintiff's counsel argues that plaintiffs spinal injures "may in fact lead to paraplegia," such allegations are mere speculation and insufficient to raise an issue of fact. Accordingly, the common law indemnification and contribution claims against Amertech are dismissed.
Contractual Indemnification
Section 11 of the Workers' Compensation Law provides that a provision in a written contract whereby an employer expressly agrees to indemnify a third-party is enforceable despite the nature of the injury suffered by the plaintiff ( Flores v Lower East Side Service Center, Inc., 4 NY3d 363, 367-368; Tonking v Port Auth. , 3 NY3d 486, 490).
In moving for dismissal of the contractual claims made against it, Amertech submits the affidavit of Vito Pietanza (Pietanza), Amertech's President for more than twenty-three years, and copies of ten purchase orders received, via facsimile, from AAR in connection with the Reliant project. Amertech contends that these single-sided purchase orders, which do not contain an agreement to indemnify, are the only documented evidence of an agreement between itself and AAR. Pietanza affirms that he was never provided with the indemnification agreement which, purportedly, was on the reverse side of the AAR purchase order form. Pietanza avers that in his seven year history of conducting business with AAR he has always received a one-sided, one-page purchase order from AAR. He affirms that he was unaware of any additional terms in connection with the purchase orders, nor does he recall Amertech ever agreeing to indemnify AAR. Amertech has established its prima facie entitlement to summary judgment with its submission of the purchase orders, which contain no indemnity clause, and the affidavit of its President ( Sarmiento v Klar Realty Corp. , 35 AD3d 834, 836).
It is undisputed that there was no written agreement between Amertech and Reliant. Reliant's claim for contractual indemnification is dismissed as barred by the Workers' Compensation Law § 11. Moreover, Reliant does not oppose this portion of the motion.
AAR, in opposition to the instant motion, submits the deposition testimony of Douglas Esse (Esse), current Vice President of Programs of AAR Cargo Systems and former General Manager of AAR Power Services, and the deposition testimony of Vito Pietanza. AAR also supplies a copy of the document which purports to be the reverse side of its purchase order and which is entitled "Purchase/Repair Order General Terms." Plaintiff, in opposition, supplies the May 25, 2007 affidavit of Douglas Esse. The reverse side of the purchase order reads in relevant part:
"[Amertech] hereby releases and agrees to indemnify, defend and hold harmless [AAR]. . . . against all losses, liabilities, damages, costs, and expenses . . . (b) for deaths of or injuries to any persons whomsoever, and for loss of, damages to, delay in delivery or destruction of any property arising out of or in any way connected with the services performed or goods sold hereunder, except to the extent such loss is caused solely by [AAR's] willful misconduct.
Esse affirms that it was the customary practice for purchase orders to include "some type of indemnification agreement between [AAR] and the vendor." He affirms that "[g]enerally, as a matter of custom and practice, those indemnification provisions would be on the rear of a particular purchase order agreement" and it was the general practice to keep a copy of the terms and conditions on file following the completion of negotiations and execution of purchase orders. Esse states that all transactions with Amertech were made with purchase orders, on the reverse side of which was this indemnification language. After Amertech received the purchase order, it was standard practice for Amertech to acknowledge receiving the purchase order's rear portion.
The testimony and affidavits supplied by the parties raise an issue of fact as to whether the indemnification language was included within the parties' agreement, thereby precluding summary judgment on the claim for contractual indemnification ( Flores, 4 NY3d 363, 369-370 [2005]["the common-law rule — which authorizes review of the course of conduct between the parties to determine whether there was a meeting of minds sufficient to give rise to an enforceable contract — governs the validity of a written indemnification agreement under Workers' Compensation Law § 11"]).
It is noted, however, that the purported indemnification clause, as written, violates General Obligations Law § 5-322.1. The law "declares void agreements purporting to indemnify contractors against liability for injuries 'contributed to, caused by or resulting from' their own negligence, 'whether such negligence be in whole or in part'" ( Brown v Two Exchange Plaza Partners, 146 AD2d 129, 137, aff'd 76 NY2d 172; General Obligations Law § 5-322.1). The language of the agreement at issue seeks to indemnify AAR for "all losses [and] liabilities except to the extent such loss is caused solely by [AAR's] willful misconduct [emphasis added]." This language seeks to pass AAR's liability for its own general negligence to the indemnitor, in violation of General Obligations Law § 5-322.1 ( Itri Brick Concrete Corp. v Aetna Cas. Sur. Co., 89 NY2d 786, 795; Castilla v KAB Realty, Inc. , 37 AD3d 510, 512; Alesius v Good Samaritan Hosp. Med. and Dialysis Ctr. , 23 AD3d 508).
When, however, there is no evidence of fault on the part of the indemnitee General Obligations Law § 5-322.1 will not render the clause unenforceable ( Connolly v Brooklyn Union Gas Co., 168 AD2d 477, 478; Cabrera v Board of Educ. of City of New York , 33 AD3d 641, 643; see also Ronnen v Ajax Elec. Motor Corp., 88 NY2d 582, 589[the court has consistently ruled against any construction which would render a contractual provision meaningless or without force or effect]). Thus, the burden is on the indemnitor to come forward with proof that the intemnitee was either negligent or in some manner at fault, and in the absence of such proof General Obligations Law § 5-322.1 is inapplicable ( Brown, 146 AD2d at 138). "[T]he clause is void to the extent it requires indemnification in the presence of negligence on [AAR's] part; it is valid to the extent is requires indemnification in the absence of negligence on [AAR's] part" ( Brown, 146 AD2d at 139). Upon this limited record, which inter alia has not been developed to address AAR's negligence or lack thereof, no determination as to AAR's right to contractual indemnification from Amertech may be made. Accordingly, it is
ORDERED, that such portions of Amertech's motion as seek dismissal of Reliant's contractual and common-law claims for contribution and indemnification and AAR's common-law claim for contribution and indemnification are granted; and it is further
ORDERED, that the motion is in all other respects denied; and it is further
ORDERED, that the Note of Issue is to be filed on or before December 21,