The opinion of the court was delivered by: CONNER
Plaintiff Clayton Larry Boyette brings this action against Algonquin Gas Transmission Co. ("Algonquin") seeking damages on claims of negligence and violations of New York Labor Law for injuries Mr. Boyette sustained when he fell on Algonquin's property on August 9, 1990. Plaintiff Delores Boyette, Clayton's wife, has joined a claim for loss of consortium. Algonquin has impleaded Third-Party Defendant Dick Enterprises, Inc., ("Dick"), the contractor performing construction work on the property at the time of the accident. We have diversity jurisdiction over the action pursuant to 28 U.S.C. § 1332. Algonquin brings this motion under Fed. R. Civ. P. 56 seeking summary judgment against Boyette establishing no liability, and against Dick establishing that Dick is contractually liable to defend, indemnify and insure Algonquin.
On or about June 11, 1990, Algonquin and Dick entered into a contract pursuant to which Dick agreed to act as the general contractor on a project to expand Algonquin's existing compressor station in Southeast, New York. To insure Dick's conformance with the contract, Algonquin had on site a chief inspector, Pat Convery, and a welding inspector, Lee Wright. The contract provided that Dick would indemnify Algonquin (Article IX) and that Dick would obtain specified amounts of insurance (Article X).
As a result of the fall, plaintiff suffered a herniated disc and had to have a lumbar laminectomy and excision of the ruptured disc. In his answers to Dick's interrogatories, he states that he suffers "permanent effects of pain, loss of motion, disability, loss of proper use, atrophy, anxiety and mental anguish," and has been "confined to bed and/or home, except for medical treatment and occasional excursions," and has been out of work from the time of the accident to the present. Pl. Exh. A, PP 8-11, 14.
Clayton and Delores Boyette brought suit against Algonquin in Supreme Court, New York County in August of 1993 alleging $ 10 million and $ 1 million in damages, respectively. Algonquin requested that Dick, Algonquin's general contractor, indemnify and defend Algonquin, but the request was denied.
Eisman Dec. Exh. G. In November, Algonquin impleaded Dick, asserting that Dick is obligated by contract to defend, indemnify and procure liability insurance for Algonquin. Dick had the case removed to this court, and in November 1995, Algonquin amended its Third Party complaint to allege that Dick had been negligent and had breached the contract by its manner of conducting activities at the site. In March of 1996, Algonquin served on Dick a request to admit its obligations to indemnify and insure Algonquin. This request has never been answered. In June of 1996, Algonquin brought this motion for a summary judgment that: 1) Algonquin is not liable to Boyette for negligence or otherwise under the labor laws; and 2) that Dick is contractually obligated to defend, indemnify and procure insurance for Algonquin against such liability. We discuss both contentions below.
I. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(d). A material fact is genuinely disputed only if, based on that fact, a reasonable jury could find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). On a motion for summary judgment, all evidence must be viewed and all inferences must be drawn in the light most favorable to the nonmoving party. City of Yonkers v. Otis Elevator Co., 844 F.2d 42, 45 (2d Cir. 1988).