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NY Court Holds Indemnification Provision Not Transferable

June 10, 2010

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In Tavella v. Skanska USA, Inc, the plaintiff, employed by third-party defendant Koehler Masonry, was injured during the course of his work on a construction project. Third-party plaintiffs Hazen and Sawyer brought a third-party complaint against Koehler, a subcontractor on the project, based on contractual indemnification.
Koehler moved to dismiss the third-party complaint because the indemnification provision cited by Hazen and Sawyer specifically stated that it applied only to the City of New York and Pegno/Tully, the prime contractor that hired Koehler to work on the project. Hazen and Sawyer argued that they were entitled to indemnification from Koehler because Koehler assumed Pegno/Tully's obligations under the contract, including Pegno/Tully's obligations to indemnify Hazen and Sawyer.
The Supreme Court, Kings County granted Koehler's motion based on the fact that Koehler agreed to only indemnify Pegno/Tully and the City of New York. Moreover, the court held that the language in the subcontract which required Koehler to assume the duties that Pegno/Tully assumed was a general provision related to detail of the work. The indemnification provision was specific and it applied to only those contractors and entities named in the subcontract.
Thanks to Maju Varghese for his contribution to this post.
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