Amguard Insurance v. Getty Realty Corp.
147 F. Supp. 3d 212
S.D.N.Y.2015Background
- On August 8, 2013, a storm caused trees located in or adjacent to an O&R easement on Getty-owned property to fall and damage JR Realty’s car wash; AmGuard sued Getty and others as subrogee for JR Realty.
- Getty (servient owner) impleaded Lewis Tree Service, which O&R contracted to inspect and maintain vegetation within the easement, seeking contribution and indemnity if Getty is held liable.
- Getty’s amended third-party complaint alleges Lewis was contracted to inspect/remove the relevant trees, failed to do so, and thereby contributed to or caused the damage.
- Lewis moved to dismiss under Rule 12(b)(6), arguing the pleading is deficient (fails to identify the specific tree(s) and that a microburst storm, per an NCDC report, explains the damage).
- The Court assumed New York substantive law applies and evaluated whether Getty plausibly pleaded common-law contribution, common-law indemnity, and contractual indemnity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of motion | Lewis filed within Court-ordered deadline | Motion was timely (Getty claimed otherwise) | Lewis’s motion was timely; not dismissed on timeliness grounds |
| Choice of law | New York law controls (forum and location of tort) | Agreed or assumed New York law | New York substantive law applied |
| Contribution claim sufficiency | Getty alleged Lewis had contract/duty to maintain trees, breached it, and that breach contributed to damage | Lewis: Getty must identify specific tree(s); storm alone explains loss | Pleading adequate under Rule 8; Getty need not identify a particular tree; contribution claim survives |
| Common-law indemnity adequacy | Getty can be vicariously liable as servient owner and thus seek indemnity from Lewis | Lewis: Getty fails to plead breach or duty to Getty | Getty plausibly alleged Lewis breached duties and that Getty could face vicarious liability; indemnity claim survives |
| Contractual indemnity / third‑party beneficiary | Getty alleges it was an intended, immediate third‑party beneficiary of Lewis–O&R contract, supporting implied contractual indemnity | Lewis: No express indemnity and Getty not party to contract | Allegations suffice at pleading stage to infer third‑party beneficiary status and implied contractual indemnity; claim survives |
Key Cases Cited
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standard: plausible on its face)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (legal conclusions not entitled to assumption of truth)
- Arista Records, LLC v. Doe 3, 604 F.3d 110 (2d Cir. 2010) (Rule 8 notice-pleading principles explained)
- Lotes Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395 (2d Cir. 2014) (accept factual allegations and draw inferences at Rule 12 stage)
- Rosado v. Proctor & Schwartz, Inc., 66 N.Y.2d 21 (N.Y. 1985) (distinguishing contribution and indemnity)
- Sommer v. Federal Signal Corp., 79 N.Y.2d 540 (N.Y. 1992) (contribution remedy among joint tortfeasors)
- Newman & Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660 (2d Cir. 1996) (third‑party beneficiary inference where reasonable)