OWNER’S CLAIM FOR INDEMNITY TO THE EXTENT OF ENGINEER’S NEGLIGENCE BOOTED

MUST SHOW NEGLIGENCE VS PROFESSIONAL WITH EXPERTS

New England Building & Bridge, Co., Inc. v. Town of Cohasset v. CDM Smith, Inc. Civil Action No. 21-cv-11567-DJC (D. Mass. May 21, 2024)

FACTS

Project = Town dam rehabilitation

• Owner = Cohasset
• General Contractor = New England Building & Bridge (NEB&B)
• Engineer = CDM Smith (contract with Owner)

Lawsuit – GC v Owner, Owner sued Engineer based on the indemnity in the Owner Engineer contract. (Owner claimed Engineer’s 30” siphon pipe design was flawed. )

Indemnity - Engineer agreed to indemnify Owner for claims “to the extent of” the Engineer’s negligence.

ISSUE

Engineer moved to dismiss the Town’s indemnity claim before trial saying there was no proof of Engineer negligence.

RULING

Town’s indemnity claim dismissed.

REASONS

If you want to enjoy indemnity from a party who owes it only to the extent of their negligence – you must establish that negligence or risk getting your claim dismissed altogether. Burden of proof to show negligence on the one seeking indemnity

Owner who got sued by the GC, argued that the claim meant that the Engineer must have been at least partially negligent.

ISSUE 2

Do you need an expert to sue an engineer?

RULING 2

Yes testimony needs to establish clear departure from the standards of ordinary care in that profession. Jurors can’t just infer it.  

COBB  COMMENT

Federal Courts are more strict and throw out cases more quickly than do than State Courts. (Don’t make a Federal Case out of it).