Kevin Walsh v. Lend Lease (US) Construction, a/k/a Bovis Lend Lease, Inc. v. Rossi Electric Company, Inc.
155 A.3d 1201
| R.I. | 2017Background
- In 2008 at the Carnegie Abbey Tower project, Lend Lease was general contractor and Rossi Electric was an electrical subcontractor; Kevin Walsh (a worker for a Rossi subcontractor) was severely injured by tripping on a can of plumber’s glue.
- Walsh sued Lend Lease and a plumbing subcontractor; Lend Lease filed a third-party complaint against Rossi seeking contractual defense and indemnification.
- The indemnity clause required Rossi to defend and indemnify Lend Lease for bodily-injury claims arising in connection with Rossi’s performance, unless the injury was caused by the sole negligence of the party indemnified.
- Rossi and Lend Lease each moved for summary judgment; the Superior Court granted Rossi’s motion and denied Lend Lease’s motion, and entered partial final judgment.
- Lend Lease appealed; the Supreme Court vacated the Superior Court’s grant of summary judgment and remanded, finding material factual issues (notably whether Lend Lease was solely negligent) precluded summary disposition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rossi must defend and indemnify Lend Lease under the contract | Rossi’s indemnity clause unambiguously requires defense and indemnity for injuries occurring in connection with Rossi’s work, regardless of Rossi’s alleged negligence | Rossi’s obligation is conditioned by the contract exception for injuries caused by the sole negligence of the indemnitee (Lend Lease) | The clause is unambiguous but its application depends on factual determination whether Lend Lease was solely negligent; cannot resolve on summary judgment |
| Whether summary judgment for Rossi was appropriate | Lend Lease argued summary judgment was improper because factual allocation of negligence was unresolved | Rossi argued contract language and record warranted summary judgment in its favor | Court held summary judgment for Rossi was erroneous because material factual issues remain |
| Whether summary judgment for Lend Lease was appropriate | Lend Lease sought judgment enforcing indemnity now | Rossi opposed, noting factual questions and the sole-negligence carve-out | Court held summary judgment for Lend Lease also inappropriate at this stage |
| Whether Rossi breached by failing to produce an insurance policy naming Lend Lease as additional insured | Lend Lease asserted Rossi breached by not providing the CGL policy showing Lend Lease as additional insured | Rossi (and record) lacked the insurance policy in the summary-judgment filings; trial court did not address the claim | Court declined to resolve this issue on appeal because the policy was not in the record and the trial justice did not meaningfully rule on it |
Key Cases Cited
- Rodrigues v. DePasquale Building & Realty Co., 926 A.2d 616 (R.I. 2007) (third-party indemnity analyzed in light of prior factual finding of general contractor negligence)
- Holley v. Argonaut Holdings, Inc., 968 A.2d 271 (R.I. 2009) (negligence issues require factual determinations)
- Gorman v. Gorman, 883 A.2d 732 (R.I. 2005) (clear, unambiguous contract terms are applied as written)
- A.F. Lusi Construction, Inc. v. Peerless Insurance Co., 847 A.2d 254 (R.I. 2004) (contract language given plain, ordinary, usual meaning)
- Estate of Giuliano v. Giuliano, 949 A.2d 386 (R.I. 2008) (summary judgment is for issue-finding, not issue determination)