[*1]
Duffina v County of Essex
2014 NY Slip Op 51038(U) [44 Misc 3d 1206(A)]
Decided on June 12, 2014
Supreme Court, Essex County
Muller, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on June 12, 2014
Supreme Court, Essex County


Rickey L. Duffina, Plaintiff, .

against

The County of Essex, Defendant.




1007-08



Poissant, Nichols, Grue & Vanier, P.C., Malone (Stephen A. Vanier of counsel), for Plaintiff.



FitzGerald Morris Baker Firth, P.C., Glens Falls (Jill O'Sullivan of counsel), for Defendant/Third-Party Plaintiff.



Burke, Scolamiero, Mortati & Hurd, LLP, Albany (Mark G. Mitchell of counsel), for Third-Party Defendant Graymont Materials, Inc.



Donohue, Sabo, Varley & Huttner, LLP, Albany (Kenneth G. Varley), for Third-Party Defendants Gary G. Beaudin and Renee D. Beaudin d/b/a Beaudin Brothers Trucking.


Robert J. Muller, J.

This is an action which stems from an accident that occurred on August 24, 2007 on



Hurricane Road in the Town of Keene, Essex County. Plaintiff, an employee of third-party defendant Beaudin Brothers Trucking (hereinafter Beaudin), was operating his employer's [*2]tri-axle dump truck hauling a load of asphalt from the quarry of defendant/third-party plaintiff Graymont Materials, Inc. (hereinafter Graymont) to a paving project being carried out by defendant/third-party plaintiff County of Essex (hereinafter the County). Plaintiff sustained severe physical injuries, including damage to his brain and spinal cord.

Plaintiff alleges that, in the course of delivering his second load of asphalt, the brakes failed and the truck continued on a downgrade slope of Hurricane Road. Before the truck went off the road plaintiff jumped out of it and allegedly sustained various significant injuries. In plaintiff's action against the County he alleges negligence with respect to its design, inspection, maintenance and repairs of Hurricane Road. Plaintiff's second cause of action alleges a violation of Labor Law § 241 (6).

The County commenced a third-party action against Graymont and Beaudin. As against Graymont the County sought contribution and contractual indemnification while it also sought contribution and indemnification from Beaudin in the event that plaintiff sustained a grave injury within the meaning of Workers' Compensation Law § 11.

In Duffina v County of Essex (111 AD3d 1035 [2013]), the Appellate Division determined this Court erred in dismissing the County's cross claim against Graymont and concluded the County was entitled to summary judgment on its contractual indemnification claim against Graymont. The Appellate Division explained:



"The indemnification clause expressly incorporated into the contract between Graymont and the County provides that the former shall defend, indemnify and hold harmless the County to the fullest extent allowed by law from and against any and all liability, suits, judgments, orders, causes of action, and claims . . . arising out of or in connection with [Graymont's] negligence and/or its performance or failure to perform this agreement.' Pursuant to the parties' agreement, Graymont was responsible for both furnishing the asphalt as well as delivering it to the county paving machines at the designated job site, and it is undisputed that the accident occurred during such delivery. Accordingly, plaintiff's claims here clearly arose out of or in connection with Graymont's performance of the agreement, and the County is therefore entitled to summary judgment on its contractual indemnification claim against Graymont" (id. at 1039-1040 [footnote and citations omitted]).

It is in this posture that Graymont now seeks to reinstate its contractual indemnification claim against Beaudin and seeks summary judgment on that claim. Beaudin opposes Graymont's motion and cross-moves for summary judgment dismissing Graymont's claim for contractual indemnification.

Workers' Compensation Law § 11 precludes third-party indemnification claims against employers unless there is a "grave injury," or the claim is based upon an express written agreement for indemnification or contribution. The latter condition precedent is at issue in this motion.

The prohibition against contractual indemnification will result unless the claim is based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the claimant or person [*3]asserting the cause of action for the type of loss suffered. The determination whether a written contract satisfies Workers' Compensation Law § 11 involves a two-part inquiry. First, the Court must consider " whether the parties entered into a written contract containing an indemnity provision applicable to the site or job where the injury giving rise to the indemnity claim took place'" (Staub v William H. Lane, Inc., 58 AD3d 933, 934 [2009], quoting Rodrigues v N & S Bldg. Contrs., Inc., 5 NY3d 427, 432 [2005]). Second, it must consider whether the indemnity provision was sufficiently particular to meet the requirements of the Workers' Compensation Law § 11 (see Rodrigues v N & S Bldg. Contrs., Inc., 5 NY3d at 432; Staub v William H. Lane, Inc., 58 AD3d at 934).

The agreement under consideration here provides in relevant part:



"To the fullest extent possible by law Beaudin . . . shall indemnify, hold harmless and defend Graymont, its agents and employees from and against all claims, damages, losses or expenses including but not limited to attorneys' fees arising out of or resulting from the performance of the agreement, provided any such claim . . . (b) is caused in whole or in part by any act or omission or violation of statutory duty or regulation of Beaudin . . . or anyone directly or indirectly employed by it . . . " (emphasis added).

Accordingly, this Court can, and does, determine that plaintiff's injuries, occurring on Hurricane Road, "[arose] out of or result[ed] from the performance of the agreement" by Beaudin, which was to haul asphalt from Graymont's plant to various off-site paving projects. That being so, this contractual language is particular enough to extend indemnification from Beaudin to Graymont and this Court specifically declines to endorse Beaudin's myopic view that its duty to indemnify Graymont is limited only to events occurring on Graymont's property when Beaudin is servicing or supplying Graymont.

As the Appellate Division has already observed, an issue of fact exists as to whether the brake failure was caused by inadequate maintenance of the truck or plaintiff's operation of the truck. It is therefore impossible to determine in the context of this motion and cross motion whether plaintiff's injuries resulted from a breach of the duty owed by Beaudin to properly maintain the truck or were the product of plaintiff's own negligence, or some blend of the two — or perhaps more — theoretically, including the culpable conduct of Graymont, if there be any, or the County.[FN1] There may be more than one proximate cause of an injury and until the jury determines the substantial factor — or factors — which led to the plaintiffs's injuries, awarding anything greater than conditional contractual indemnification would be premature (see Gutelle v City of New York, 55 NY2d 794, 796 [1981]; Popolizio v County of Schenectady, 62 AD3d 1181, 1183 [2009]; Hill v Town of Reading, 18 AD3d 913, 916 [2005]; Temple v Chenango County, 228 AD2d 938, 940 [1996]).

Based upon the foregoing, it is

ORDERED that Graymont's motion to reinstate its contractual indemnification claim against Beaudin is granted; and it is further

ORDERED that Graymont's motion for summary judgment on its contractual indemnification claim against Beaudin is denied, without prejudice and with leave to renew at the conclusion of trial; and it is further

ORDERED that Beaudin's cross motion for summary judgment dismissing Graymont's claim for contractual indemnification is denied; and it is further

ORDERED that any relief not specifically addressed herein has nonetheless been considered and is expressly denied.

The original of this Decision and Order is returned to counsel for Graymont for filing and service with notice of entry. The Notice of Motion dated January 3, 2014 and the Notice of Cross Motion dated March 11, 2014 have been filed by the Court together with the submissions referenced below.



Dated:June ___, 2014

Lake George, New York



ENTER:



____________________________________



ROBERT J. MULLER, J.S.C.

Footnotes


Footnote 1:The Court notes that there is some tension between General Obligations Law § 5-322.1 and an award of contractual indemnification from Graymont to the County, as the Appellate Division found an "issue of fact . . . as to whether the alleged negligence of the County in permitting public traffic on Hurricane Road, while construction was ongoing, was a substantial factor in causing or exacerbating plaintiff's injuries" (Duffina v County of Essex, 111 AD3d at 1038).