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Subcontractor’s Requirement to Indemnify “Contractor,” Did Not Refer to All Contractors on Site, Regardless of Supervisory Capacity.

November 6, 2012

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In <em>Almonte v. Cauldwell-Wingate</em>, Cauldwell was the general contractor for renovation of a New York courthouse.  Cauldwell hired ASM Mechanical Systems as its HVAC contractor, who in turn subcontracted the work to Bradshaw Mechanical Co., Inc.  The ASM/Bradshaw contract provided that "the Subcontractor agrees to indemnify and hold harmless the Contractor (insert any additional parties), their officers, directors, agents, employees and partners" for all claims arising from, in connection with, or as a consequence of the work on the construction site.  No "additional parties" were inserted, nor did the contract anywhere refer to Cauldwell. 
Almonte, a Bradshaw employee, fractured his wrist while working on the project and sued Cauldwell.  Cauldwell impleaded several parties including Bradshaw.  Bradshaw moved to dismiss the third-party complaint on the basis that there was no “grave injury,” and no contract requiring Bradshaw to indemnify Cauldwell.  In opposition, Cauldwell argued that since it was the general contractor and ASM had no involvement after subcontracting to Bradshaw, it was the “Contractor” that supervised the project, and to whom Bradshaw owed indemnification.  The court disagreed and stated, that “not only the intent to indemnify, but also the scope of the indemnification," and the number and identity of the indemnitees, must be "unmistakably clear."  Accordingly, since the ASM/Bradshaw contract did not unmistakably require Bradshaw to indemnify Cauldwell, the court granted Bradshaw’s motion to dismiss Cauldwell’s third-party claims against it.
As noted by the court, in defending claimants’ employers, even if an indemnification provision exists, it is extremely important to ensure that the language is unmistakably clear.  If your client did not intend to indemnify a party that has asserted claims against it, a motion to dismiss is likely warranted.
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