July 30, 2012 In two recent cases the Massachusetts Appeals Court cautioned trial judges against granting summary judgment in construction cases. Parties who argued they should be set free from the claims had to stay in and pay – at least to defend. One case Docos reversed the dismissal of the general contractor; another LeBlanc revived dismissed claims by an owner against an architect and its sub-consultant. Summary judgment is disfavored in negligence cases generally. This rule has the practical benefit of leaving more parties and their insurance policies available to compile settlements. If claimants say the job was generally messy The General Contractor won’t get out In Docos a subcontractor employee who got hurt when sheetrock he tipped away from the wall and fell on him. He sued the general contractor alleging the project was generally messy. Despite efforts to contract themselves out of liability, designers can owe owners indemnity In LeBlanc a person was electrocuted by a transformer which according to the design specifications needed a warning sign. None was posted even though the absence was the subject of a letter. The Architect certified completion and final payment impliedly or explicitly representing that the work in place, satisfied the requirements of the drawings. Architects and engineers attempt to avoid personal injury liability; they do not want contractor liability. Designers contract with the owner but not with the general contractor or its subcontractors. Design agreements with owners state that architects have no right to control the details of the contractor’s performance. Designers produce plans and they observe that the construction done in conformance with those plans and they call out departures in the construction from the drawings. The LeBlanc case held that designers can be liable to indemnify Owners for personal injury damages caused by electricity. The designers’ contract with the owner included many duties including the duty to indemnify. That claim should have been put to a jury. Architects and engineers will have a harder time getting dismissed from cases by summary judgment after Leblanc case. Contribution for a part is not Indemnity for the whole In the typical construction injury case there many parties and they all seek contribution and indemnity from each other. For those who have satisfied the entire liability, contribution is a remedy to recoup a portion of the payout from other legally responsible parties. In the LeBlanc case the record was too incomplete for the judges to rule on contribution claims. Indemnity enforceable with a signed agreement to eat the entire loss Construction projects rely on the enforceability of written indemnity agreements. Insurance is designed and purchased to cover these obligations. Courts enforce signed indemnity agreements. In LeBlanc the designers who had agreed to indemnify the owner, should not have been dismissed from the case. Implied indemnity – available only to fault-free parties- an inconsistently enforced requirement Where parties have no explicit indemnity contract, indemnity can be implied – sometimes. The rule is easy to state. Indemnity is appropriate for someone whose liability is purely vicarious due to the acts of another. In LeBlanc, the architect and its electrical sub-consultant owed no indemnity to the electrical subcontractor whose fault in failing to hang the sign was one cause of the accident. In practice, characterizing liability as entirely derivative and vicarious on one hand as opposed to active and involved is often perplexing. Some would argue this rule lacks intellectual integrity even while in practical application, it performs in an often serviceable manner. If a personal injury plaintiff sues a general contractor and its subcontractor, the plaintiff may argue that the contractor ought to have used more care in overseeing the subcontractor. Such a contractor could be denied indemnity under the rule that only fault free parties enjoy indemnity. Dicta in one of the cases restated a rule whose application has the potential to mystify even seasoned construction insurance law practitioners. The application of indemnity limiting statutes and case law nostrums is a combination sure to tax the attention span of even the most willing and alert.