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Rodrigues v. N & S Building Contractors10/20/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Workers' Compensation Law § 11 prohibits third-party indemnification or contribution claims against employers, except where the employee sustained a "grave injury," or the claim is "based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the claimant or person asserting the cause of action for the type of loss suffered." This appeal centers on the latter exception, in particular whether the parties' agreement satisfied statutory requirements for a viable indemnification claim. We conclude that it did.
Facts
Third-party plaintiff N & S Building Contractors, Inc. was the general contractor for the construction of a single-family house located at 284 Jansen Road in Shawangunk, New York. N & S hired third-party defendant Caldas Concrete Company, Inc. as a subcontractor to erect the concrete foundation. The two companies had a longstanding relationship, having worked together approximately 20 times prior to the Jansen Road project. In February 2000 the parties entered into a one-page "Insurance, Indemnification and Safety Agreement." The Agreement required Caldas to carry certain insurance, name N & S as an additional insured on its general liability policy and furnish N & S with a certificate from the insurer that insurance was in force. The Agreement further provided that
" o the fullest extent permitted by law, Subcontractor [Caldas] shall indemnify and hold harmless N. & S. Building Contractors, Inc. and Owner against any claims, damages, losses, and expenses, including legal fees, arising out of or resulting from performance of subcontracted work to the extent caused in whole or in part by the Subcontractor or anyone directly or indirectly employed by the subcontractor."
Finally, the Agreement stated that the " afety of [Caldas's] employees, whether or not in common work areas, is the responsibility of [Caldas]."
Caldas president Joaquin Januario signed the Agreement on February 7, 2000 the same date reflected on the certificate of liability insurance naming N & S as an additional insured under Caldas's commercial general liability insurance policy. Approximately four months later, on June 20, 2000, Caldas began work at the Jansen Road site pursuant to an oral agreement with N & S. The following day, Jose Rodrigues, a Caldas employee working at the site, tripped, fell into a trench and was impaled on a piece of rebar. Rodrigues, and his wife derivatively, sued N & S alleging numerous causes of action, all subsequently withdrawn except those alleging violations of Labor Law § 241 (6).
N & S commenced a third-party action against Caldas and its insurer, Transcontinental Insurance Company, seeking indemnification based on the Agreement and claiming that Transcontinental's refusal to defend and indemnify N & S was in bad faith. Supreme Court granted Caldas's motion to dismiss that claim, concluding that, because "there was no written contract between N&S and Caldas for the work being performed at 284 Jensen Road, the site of the accident," N & S's claim could not be sustained. The Appellate Division affirmed, holding that "the agreement does not unambiguously and expressly provide that Caldas must indemnify N & S for injuries sustained by Caldas employees in the scope of their employment" (8 AD3d 876, 878 [3d Dept 2004]). The court added that " he agreement specifie
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