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Lewis Brisbois Client Obtains Summary Judgment In New York Indemnity and Defense Claim

Lewis Brisbois recently obtained a summary judgment dismissal of a third-party suit alleging that the firm’s insured steel company client must indemnify and defend the general contractor in an injured worker's suit.

The plaintiff alleged negligence and claims under the New York Labor Law (Sections 200, 240 and 241(6)) for injuries that he incurred when he fell from a ladder while working at a construction site. The plaintiff was an employee of our client’s subcontractor. The firm’s client was contracted to perform steel fabrication, erection, and delivery at the project, and was impleaded as a third-party defendant by the general contractor. The contract between our client and the general contractor contained a contractual provision obligating it to defend and indemnify the general contractor for any negligence arising out of its work or the work of its subcontractor, the plaintiff’s employer.

With regard to common law indemnification, we contended that our client could not bear any responsibility for the occurrence. We argued that, in its roles as an off-site steel fabricator, our client could not, under any theory, be responsible for the plaintiff’s accident. In order to avoid a claim for common law indemnification, however, we also had to dispose of the third-party claim for contractual indemnification. Even in the absence of any showing of negligence, New York General Obligations Law 5-322.1 allows for the enforcement of contractual indemnification for vicarious liability for Labor Law violations, i.e. even if our client was not liable, as long as the party seeking indemnity was also free from fault, it could be granted full indemnification from a party (the firm’s client in this case), which was not actively negligent. Moreover, under the pertinent contractual indemnification clause, our client was responsible for indemnifying the general contractor for the negligence of our subcontractor.

We garnered helpful testimony during depositions of the involved individuals and were able to establish a question of fact regarding the general contractor’s culpability for the incident. That factual dispute was used to support a motion for summary judgment. In the motion, we argued that at the time of the accident, the plaintiff was performing work for our subcontractor and that the evidence established that no active negligence could be attributed to our client. In addition, we argued that the general contractor could not submit evidence to establish that it was free from negligence in regard to the plaintiff’s injury such that it would be entitled to contractual indemnification, defense or contribution from our client.

Our motion seeking summary judgment dismissal of the general contractor’s third-party claims, along with any and all cross-claims, was granted. The general contractor’s cross-motion against our client declaring that we were obligated to defend and indemnify them pursuant to written contract, including but not limited to any deductible or self-insured retention on their policy of insurance, and to reimburse them for all fees and disbursements incurred in the defense of this action was denied. Further, that portion of our motion seeking summary judgment against our subcontractor for contractual indemnification, contribution and breach of contract due to the failure of our subcontractor to procure liability insurance was granted.

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