Opinion
Civil Action 2016-00512
06-11-2018
Timothy SILVA & another[1] v. ROCHESTER BITUMINOUS PRODUCTS; Clover Paving Company, Inc., third-party defendant
MEMORANDUM OF DECISION AND ORDER ON THIRD-PARTY DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
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 .
BACKGROUND
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.
DISCUSSION
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.
Since Rochester and Clover are Massachusetts corporations, entered into an agreement in Massachusetts and negotiated the terms of the agreement in Massachusetts, the Court believes that the law of Massachusetts controls. See First Nat’l Bank of Boston v. Fairhaven Amusement Co., 347 Mass. 243, 244 (1964) ("The contract was made in this Commonwealth, and, as the plaintiff concedes, its enforceability is to be determined by the law of Massachusetts.").
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" language would force [the subcontractor] to indemnify the contractor and the owner of the property for any injury or damage based on mere allegation, even if [the subcontractor] was not in fact at fault. This runs afoul of the purpose of § 29C, which "was enacted to curtail the extent of the indemnity provisions that general contractors required of subcontractors," and which requires "some action ... or inaction ... that provokes the mishap. Otherwise ... the subcontractors, just by signing up for the subcontract ... are bound to indemnify ‘come what may." ’ Miley v. Johnson & Johnson Orthopaedics, Inc., 41 Mass.App.Ct. 30, 32-33 ... (1996). In 2005, we specifically said that "alleged to be caused" language "exceeds what is permissible" under the statute because "[a] contractor may not base a claim for indemnity upon mere allegations of the subcontractor’s responsibility, because to do so could result in indemnification for injury or damage ‘not caused by the subcontractor." ’ Sheehan v. Modern Continental/Healy, 62 Mass.App.Ct. 937, 938 ... (2005). Because of this language, unless there is an appropriate savings clause, the entire indemnity provision is void under the statute. See Harnois v. Quannapowitt Dev., Inc., 35 Mass.App.Ct. at 288-289... (voiding an entire indemnification clause because it contained a provision that might have required the subcontractor to indemnify the contractor for an injury that it did not cause).Id. Rochester’s agreement seeks indemnity from a lawsuit arising from Clover’s "work" and is not limited to circumstances where Rochester is liable as a result of negligence caused by Clover. As such, Rochester’s language is overbroad and void under Chapter 149, § 29C.
Rochester also argues that indemnification should be implied from the parties’ contractual relationship. In the first place, Rochester asserted during argument that this was a case involving an express contract of indemnity, not an implied contract. There seems no reason to reach this implied indemnification theory. Even were the Court to reach it, it would reject the claim. An implied contractual right of indemnification "arises from the relationship between the parties ... only when there are ‘special factors’ surrounding the contractual relationship which indicate an intention by one party to indemnify another in a particular situation." Fall River Hous. Auth. v. H.V. Collins Co., 414 Mass. 10, 14 (1992). There is nothing in the parties’ relationship which would create an implied indemnity obligation; Clover was simply a subcontractor of Rochester, and there is nothing in their relationship that the law would recognize as special. Id. at 14-15. Further, Rochester’s argument turns on its claim that Clover was wholly responsible for the Project and that Rochester never directed the job performance of Clover’s employees on the Project. But if that is true, Rochester has no liability at all, as Silva alleges only Rochester’s own negligence and not any derivative liability for anything Clover did. See Vertentes v. Barletta Co., 392 Mass. 165 (1984) (general contractor cannot be vicariously liable to employee of subcontractor when the employee is injured because of the subcontractor’s negligence).
Lastly, Rochester claims common law indemnification. See generally Rathbun v. Western Mass. Elec., 395 Mass. 361, 363-65 (1985); Decker v. Black & Decker Manuf. Co., 389 Mass. 35, 37-41 (1982). Like the implied indemnity argument, Rochester argues it is entitled to common law indemnification because the accident occurred due to negligent conduct by Clover and/or Clover’s employees. A party may receive common law indemnification "only when one does not join in the negligent act, but is exposed to derivative or vicarious liability for the wrongful act of another." Stone & Webster Eng’g Corp. v. United Indus. Syndicated, Inc., 16 Mass.App.Ct. 948, 949 (1983) (citation omitted). Silva alleges (and has) no claim against Clover; it follows that to the extent his claim against Rochester is derivative of Clover’s liability, it fails as a matter of law and Rochester is not liable. Rochester is liable only for its own negligence, if any; indeed, Rochester is not entitled to indemnification if it joined in the negligent act. Stone & Webster Eng’g Corp., 16 Mass.App.Ct. at 949. Its negligence is thus limited to its own direct negligence, and none of that of Clover. Because that is so, Clover has no implied obligation to indemnify Rochester.
ORDER
For the foregoing reasons, Clover’s Motion for Summary Judgment is ALLOWED .