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Rodrigues v. N & S Building Contractors10/20/2005
s neither the persons covered nor types of losses covered, contains no reference to the instant job site and states only that Caldas agrees to indemnify N & S ' o the fullest extent permitted by law'" (id. at n 2). We granted N & S leave to appeal and now reverse.
Discussion
N & S asks us to grant summary judgment declaring that Caldas must indemnify it for any losses sustained in the underlying personal injury action. Thus, we may grant the relief sought only if N & S has established, as a matter of law, that the Agreement entitled it to indemnity under Workers' Compensation Law § 11 (see e.g. JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 384 ).
At the outset, it is clear that, despite the Workers' Compensation Law shield of employers from liability as joint tortfeasors, a third party may recover against an employer pursuant to contract (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 582 ). Indeed, the statute expressly permits indemnification claims "based upon a provision in a written contract." Thus, there is no question that the Workers' Compensation Law allowed N & S and Caldas to enter into an agreement that would indemnify N & S for any losses it might suffer as a result of a personal injury action by a Caldas employee.
Whether the parties did in fact have such an agreement involves a two-part inquiry. First, we consider whether the parties entered into a written contract containing an indemnity provision applicable to the site or job where the injury giving rise to the indemnity claim took place. Second, if so, we examine whether the indemnity provision was sufficiently particular to meet the requirements of section 11.
Caldas argues, and Supreme Court held, that the absence of a written contract explicitly for the Jansen Road project bars N & S's indemnity claim. We disagree.
The indemnification provision of the parties' agreement applied to the "performance of subcontracted work" between them. The insurance provision similarly did not specify any particular job site or duration, and the safety provision made Caldas responsible for the safety of its workers, again without reference to any job site or time frame. In addition to the words of the Agreement, N & S Vice President Philip Neidermier testified at his deposition that the Agreement "refers to all of our sites that [Caldas] would work on . . . . ncluding that one [Jansen Road]." Caldas did not refute this evidence.
The language of the contract, as well as the testimony, make clear that the Agreement was purposely intended to, and did, apply to all jobs for which N & S hired Caldas as a subcontractor, including Jansen Road. In that no site is mentioned, the argument that the Agreement should not apply here because it does not specifically mention Jansen Road would render it inapplicable to any site or job N & S subcontracted to Caldas. An agreement should not be construed so as to render it meaningless.
The Agreement, moreover, satisfied section 11's requirement of a "written contract." Workers' Compensation Law § 11 requires only that the indemnification claim arise from an indemnification provision in a written contract entered into before the injury. Here, the written agreement contained an indemnification provision, entered into before the injury.
Having concluded that the Agreement was a written contract between the parties applicable to the Jansen Road site, we next consider whether the indemnification provision was sufficiently clear and unambiguous. As we noted in Hooper Assoc. v AGS Computers, Inc. (74 NY2d 487, 491-492 [internal citations omitted]),
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