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FabArc Steel Supply5/20/2005
gainst it. Second, whether the trial court erred in entering a summary judgment for CCSI on FabArc's claim that CCSI breached its contractual duty to procure insurance given that, according to FabArc, the record reflects the existence of genuine issues of material fact as to that claim and, in any event, it was not ripe for disposition because of collateral litigation pending in the federal court.
As noted, Cynthia alleged generally against FabArc that it and its "employees and/or agents," had "negligently or wantonly failed to provide and/or install proper and adequate supports, anchors, and fasteners to secure and stabilize the masonry wall that collapsed and killed Plaintiff's decedent, Evodio Sanchez." FabArc contends that, by process of elimination under the undisputed facts, these allegations can be understood to relate only to the alleged failure by it, through CCSI, to install anchors or fasteners known as "angle clips."
As CCSI acknowledged to the trial court in its "Legal Memorandum in Support of CCSI's Motion for Final Judgment on Third-Party Claims of Plaintiff FabArc Steel Supply, Inc.," it "had responsibility for installing angle clips to the horizontal metal beam above masonry walls on the Toray project." It went on to explain:
"Plaintiff's decedent was fatally injured when a wall that was being built by his employer (J&J [Masonry]) collapsed. The general construction sequence of and problems with the subject wall were as follows:
"The Wall
"Re-bar should have been placed in the cement footings prior to the first course of brick. This wall lacked any such in-footing re-bar. It was the responsibility of the 'footing' company to include re-bar in the footings. In other words, neither FabArc nor CCSI had responsibility for placing re-bar in the footings.
"Brick ties1 should have been added to the wall as every two or three courses of brick are added. The ties would then be welded onto the vertical columns that were adjacent to the wall. This wall lacked vertical brick ties that secured the wall to the adjacent vertical columns. Neither FabArc nor CCSI had any responsibility or duty to install brick ties to vertical columns. That was the responsibility of the masonry contractor, J&J.
"After the construction of the masonry wall was complete, angle clips were to be welded onto the horizontal steel beam that traversed above the wall. The wall must be complete before these clips are to be installed. J&J was to inform Shimizu when the wall was ready to have angle clips attached to the steel beam. Then, after the clips had been welded onto the beam, J&J was responsible for attaching them to the masonry wall with anchor bolts. The protocol on the Toray job was for J&J to inform Shimizu when the masonry wall was ready for the angle irons to be added to the horizontal steel beam. Shimizu was never informed that the subject wall was ready for angle clips to be attached to the horizontal steel. Thus, nobody advised CCSI that the wall was ready for the clips to be welded onto the horizontal steel beam. Attachment of the angle clips to the steel beam did not in any way support or secure the wall. It was only after J&J bolted the clips to the wall that any support would have been provided.
"OSHA requires that adequate bracing be provided to 'any wall greater than eight (8) feet in height to prevent collapse unless the wall is adequately supported so that it will not overturn or collapse. The bracing shall remain in place until permanent supporting elements of the structure are in place.' 29 CFR 1926.706(b) (emphasis added). During its construction, the subject wall was supported by scaffoldin
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