FKB’s Andrew Kowlowitz and Daniel Butler successfully dismissed all claims against FKB’s client, a third-party defendant in a construction-site accident case, by way of a summary judgment motion.   Plaintiff, a construction worker, alleges that a chimney collapsed in the demolition phase of a construction project, and fell downward on to him from the floor above him – undergoing multiple ankle/foot surgeries since the alleged date of loss.

Third Party Plaintiffs, a real estate developer and property owner, advanced third-party claims against FKB’s client, a construction company, sounding in indemnification and contribution.  FKB argued on summary judgment that there was no obligation to  indemnify Third Party Plaintiffs, for two critical reasons:  first, there was no contract and/or written agreement concerning any indemnity obligations owed from FKB’s client to the Third Party Plaintiffs.  FKB elicited testimony from the Third Party Plaintiffs that the agreement – to the extent there was an agreement concerning construction work – was oral.  Second, FKB argued that Plaintiff was an employee of FKB’s client, and that pursuant to Worker’s Compensation Law Section 11, Third Party Plaintiffs were not allowed to sue FKB’s client in the absence of a “grave injury.”  FKB argued that the Third Party action must be dismissed on summary judgment.

By decision dated July 26, 2021, Justice Lance Evans granted FKB’s motion dismissing the entire Third Party action.  Justice Evans agreed with both of FKB’s arguments on summary judgment, and held that “[FKB’s client] establishes, prima facie, that there was no written agreement between the parties that required it to contribute, indemnify or procure insurance, and it is undisputed that Plaintiff did not sustain a grave injury under WCL 11.  As no triable issues of fact have been raised to defeat summary judgment, summary judgment dismissing the third-party action is warranted.” 

If you have any questions about this decision, construction site accident litigation, or the defense of contractors, in general, please contact Andrew Kowlowitz and Daniel Butler.


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