A-2835-23
N.J. Super. Ct. App. Div.Aug 21, 2025Background
- Robert Russo, an employee of Dynamic Protection System (DPS), was injured at a construction site managed by O.A. Peterson Construction (Peterson) when he fell into an open floor hatch that had been left unattended.
- Russo and his spouse sued Peterson for negligence; Peterson sought indemnification from DPS under a subcontractor agreement’s indemnity clause.
- The indemnity provision in the subcontract required DPS to indemnify Peterson for damages “arising out of or resulting from performance of the Work,” with clause language focusing on injuries caused “in whole or in part” by DPS’s negligence.
- Peterson’s motion for summary judgment seeking indemnification was denied; DPS’s cross-motion for summary judgment (seeking dismissal regarding its own negligence) was granted.
- After trial, Peterson was found 100% liable for Russo’s injuries and ordered to pay damages; Peterson appealed multiple orders related to indemnification and DPS’s dismissal from the case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the indemnification clause unambiguous and does it require DPS to indemnify Peterson for Peterson’s own negligence? | Peterson: Clause is clear and unambiguous; DPS must indemnify for Peterson’s negligence when DPS’s work is involved. | DPS: Clause is ambiguous; no express language covers Peterson’s own sole negligence. | Clause is ambiguous; strict construction against Peterson; no indemnification for Peterson’s sole negligence. |
| Was DPS’s dismissal from litigation and severance of third-party indemnification claim proper? | Peterson: Dismissal prevented jury from assessing DPS’s comparative fault, error to dismiss. | DPS: Proper to dismiss since Peterson didn’t sufficiently oppose dismissal and clause did not cover Peterson’s conduct. | Dismissal appropriate; Peterson’s procedural misstep noted and court considered all arguments. |
| Did the trial court err in denying Peterson’s motion for reconsideration? | Peterson: Motion judge failed to address “plain and ordinary meaning” and competing clause interpretations. | DPS: Reconsideration unwarranted; clause ambiguous and already addressed. | Denial of reconsideration affirmed; court applied appropriate standard and reasoning. |
| Could Peterson raise new issues about jury assessment of DPS’s fault on appeal? | Peterson: Newly raised issue on appeal about jury allocation of fault to DPS. | DPS: Argument not preserved for appeal. | New issue not addressed; appellate court will not consider arguments raised for first time except in rare instances. |
Key Cases Cited
- Ramos v. Browning Ferris Indus. of S. Jersey, Inc., 103 N.J. 177 (ambiguous indemnity provisions are strictly construed against the indemnitee)
- Azurak v. Corp. Prop. Invs., 175 N.J. 110 (indemnity agreements lacking clear language do not require covering the indemnitee’s own negligence)
- Englert v. The Home Depot, 389 N.J. Super. 44 (ambiguous indemnity clauses must be construed against the party seeking indemnity)
- Kieffer v. Best Buy, 205 N.J. 213 (contract interpretation reviewed de novo on appeal)