995 N.E.2d 1125
Mass. App. Ct.2013Background
- Fraco (manufacturer/seller) sold mast-climbing platforms to Bostonian (masonry subcontractor); one platform (Machine No. 10) later collapsed during dismantling at a construction site, killing two workers and a passerby.
- The decedent DaSilva was a Bostonian employee; his estate sued Fraco alleging negligent design, manufacture, installation, service, and inspection of Machine No. 10. Bostonian was not sued because it had paid workers’ compensation benefits to the estate.
- Fraco filed third-party claims against Bostonian seeking contribution and indemnification (common-law and contractual). Bostonian moved for summary judgment on those third-party claims.
- The trial court granted summary judgment for Bostonian on Fraco’s common-law and contractual indemnity claims; Fraco appealed only the indemnity rulings.
- The court applied Massachusetts law to the tort-based common-law indemnity claim and Georgia law to the contractual indemnity claim (Fraco Products, Inc., is a Georgia corporation).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fraco can obtain common-law indemnity from Bostonian (employer who paid workers’ comp) | Fraco: if any liability exists it is derivative/vicarious from Bostonian (Bostonian dismantled machine); at most Fraco’s role was de minimis so indemnity should apply | Bostonian: workers’ compensation exclusivity bars indemnity absent a special relationship or clear basis; Fraco was independently negligent (manufacturer) so no derivative liability | Held: No common-law indemnity. Manufacturer’s independent liability and absence of special relationship preclude indemnity under Massachusetts law |
| Whether Fraco can obtain common-law indemnity based on differing degree of fault (rare exception) | Fraco: if Fraco’s negligence is de minimis relative to Bostonian, indemnity should be allowed under Rathbun/differing-fault theory | Bostonian: allowing differing-fault indemnity would conflict with statutory allocation (contribution statute and workers’ comp exclusivity) and is historically disfavored/very rare | Held: No. Court rejects differing-degree-of-fault indemnity here as inconsistent with statutory scheme and precedent |
| Whether contract language requires Bostonian to indemnify Fraco (contractual indemnity under Georgia law) | Fraco: sales contract’s indemnity/risk clauses impose an indemnity obligation on Bostonian | Bostonian: contract language does not expressly, plainly, clearly and unequivocally require indemnification of Fraco; clauses are not an affirmative indemnity and termination/survival issues apply | Held: No contractual indemnity. Under Georgia law indemnity for indemnitee’s negligence must be explicit; the contract fails to meet that standard |
Key Cases Cited
- Liberty Mut. Ins. Co. v. Westerlind, 374 Mass. 524 (1978) (discusses limits on third-party indemnity where employer paid workers’ compensation and recognizes contractual indemnity exception)
- Decker v. Black & Decker Mfg. Co., 389 Mass. 35 (1983) (manufacturer–purchaser relationship does not typically give rise to common-law third-party indemnity)
- Larkin v. Ralph O. Porter, Inc., 405 Mass. 179 (1989) (general contractor–subcontractor relationship does not typically support common-law indemnity where employer paid workers’ compensation)
- Rathbun v. Western Mass. Elec. Co., 395 Mass. 361 (1985) (describes rare differing-degree-of-fault indemnity doctrine and its narrow application)
- Economy Engr. Co. v. Commonwealth, 413 Mass. 791 (1992) (addresses rare cases allowing indemnity among joint tortfeasors; does not expand doctrine)
- Boston Woven Hose & Rubber Co. v. Kendall, 178 Mass. 232 (1901) (historic instance allowing indemnity between joint tortfeasors under particular facts)
- Shawmut Worcester County Bank, N.A. v. Miller, 398 Mass. 273 (1986) (standard of review and summary judgment principles)
- Park Pride Atlanta, Inc. v. City of Atlanta, 246 Ga. App. 689 (2000) (under Georgia law, indemnity for indemnitee’s negligence must be expressed clearly and unequivocally)
- Service Merchandise Co. v. Hunter Fan Co., 274 Ga. App. 290 (2005) (Georgia courts construe indemnity clauses strictly against the party seeking indemnification)