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Rodrigues v. N & S Building Contractors10/20/2005
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" hen a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed. The promise should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances."
Here, the Agreement directly, firmly and explicitly evidenced Caldas's promise to assume responsibility for the safety of its employees, procure insurance protecting N & S and indemnify it in the event of an on-the-job injury. That Caldas arranged for the insurance required by the Agreement is further evidence that Caldas itself recognized that it had undertaken that obligation.
The Appellate Division appears to have interpreted the written-contract exception to Workers' Compensation Law § 11 to require that an indemnification provision specify the sites, persons and the types of losses covered. We are reluctant to impose specificity requirements not in the statute (see Flores v Lower East Side Service Center, Inc., 4 NY3d 363 ). So long as a written indemnification provision encompasses an agreement to indemnify the person asserting the indemnification claim for the type of loss suffered, it meets the requirements of the statute. That standard was satisfied here.
Accordingly, the order of the Appellate Division should be reversed, with costs, defendant third-party plaintiff N & S Building Contractors, Inc.'s motion for summary judgment as to the third-party action granted and judgment granted declaring that N & S Building Contractors, Inc. is entitled to indemnification from third-party defendant Caldas Concrete Company, Inc. for any judgment obtained by plaintiff against N & S Building Contractors, Inc. in the main action, to the extent that such judgment is not the result of N & S Building Contractors, Inc.'s own wrongdoing.
READ, J. (DISSENTING)
The Legislature adopted the Omnibus Workers' Compensation Reform Act in 1996 to shield employers from third-party indemnification or contribution claims except in the limited circumstances of a "grave injury," or for a claim "based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer expressly agreed to contribution to or indemnification of the claimant or person asserting the cause of action for the type of loss suffered" (Workers' Compensation Law § 11 [emphasis added]). Merriam Webster's Collegiate Dictionary defines "express" as "1a: directly, firmly, and explicitly stated b: exact, precise 2a designed for or adapted to its purpose b: of a particular sort: specific " (410 [10th ed 1997]). As amicus New York State Builders Association, Inc., points out, however, the language in the indemnification provision of the Agreement between the parties in this case "is substantially similar to that used . . . in form-documents prepared by The American Institute of Architects (AIA) and widely used and accepted throughout the construction industry." To be precise, the basis for the provision is A401-1997, issued for publication in October 1997. This type of generic indemnification, drafted for use nationwide in states without any equivalent to our rule in Dole v Dow Chem. Co. (30 NY2d 143 ), does not clearly and unambiguously signal an employer's express agreement for purposes of section 11. Surely the employer must explicitly agree to indemnify for claims against which it would be safeguarded by section 11 unless there is a grave injury. Otherwise, section 11's promise of relief from third-party actions is illusory for large categories of employers such as subcontractors that routine
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