Construction Accident Lawsuit Seeking Repayment of Damages Awarded in a Previous Case*

The plaintiffs in this construction accident lawsuit are Webb Apartments Corp, Instant Management Corporation, Instant Residential Group, Inc. and Arbold Restoration, Inc. The defendants are Kenner & Jackson Restoration, Inc.(Kenner)

This action came about due to an accident on the premises of plaintiff Webb Apartments Corp. Webb's managing agent, Instant Management Group, hired plaintiff Arbold Restoration to do exterior work at their building. Arbold in turn hired defendant Kenner Restoration as a subcontractor for masonry and painting.

An employee of Kenner stated (in another lawsuit) that on January 11th, 2001, he slipped on dust and fell from the bottom rung of a ladder on the exterior of the Webb Apartments. This worker sued under Labor Law.

The worker's trial resulted in a judgment for $90,000, plus interest. There was no finding regarding negligence. The worker was paid $104,418.39 on July 20, 2004.

In the current construction accident lawsuit, plaintiffs want to recover what they paid, "along with costs and reasonable attorneys fees, using the theories of contribution, common law indemnification and contractual indemnification, including indemnification under Kenner's insurance policy if applicable."

The court said the sub-contract between Arbold and Kenner had several indemnification provisions. The provisions say Kenner must hold harmless Arbold and Webb to "the fullest extent permitted by law, against claims, damages and expenses, including attorney's fees, arising from the subject work, but only to the extent caused by the negligent acts or omissions of the subcontractor."

One of the indemnifications is different. It says Kenner will indemnify Arbold against all claims "in any manner caused, occasioned or contributed to, by reason of any action, omission, fault or negligence of subcontractor, or of any one acting under its direction or control..."

Aside from the indemnification provisions there are also two insurance clauses in this construction accident lawsuit.

The judge outlined the plaintiff's four causes of action. The first two assert the worker's damages were the result of Kenner's negligence, meaning the plaintiffs are entitled to indemnity and contribution in a share proportionate to Kenner's culpability.

Claims three and four make reference to his obligation to get insurance, seeks contractual indemnification under the contract between Arbold and Kenner and reimbursement of defense costs and legal fees.

The defendant feels the contractual indemnification and insurance procurement provisions are unenforceable because they are inconsistent and ambiguous. Plaintiffs argue that the indemnity and hold-harmless provisions are enforceable because they are consistent and clear.

The court said the argument about the indemnification claims in this construction accident lawsuit is not persuasive. The different agreement is dated four months later that the initial provisions of the contract.

The agreement in this instance is enforceable requiring Kenner to indemnify Arbold for "any action, omission, fault or negligence whether active or passive of Kenner, or of any one acting under its direction or control," except as limited by Arbold's joint negligence.

If plaintiffs are free of negligence, they would be entitled to full indemnification from Kenner, including reasonable attorneys fees and costs. There was no evidence of negligence.

Kenner started this motion, and was obligated to prove plaintiffs' negligence to demonstrate its entitlement to judgment, or to rebut the plaintiffs' evidence. He has not done so.

Kenner's motion was denied. Plaintiffs' motion is granted and Kenner is required to indemnify plaintiffs in the amount of $104,418.39, with interest at the statutory rate from July 20, 2004, plus the costs and reasonable attorneys fees incurred to defend this construction accident lawsuit.