Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

WAUSAU BUSINESS INS. CO. v. TURNER CONST. CO.

May 9, 2001

WAUSAU BUSINESS INSURANCE COMPANY AS SUBROGEE TO THE RIGHTS OF CENTRAL SYNAGOGUE, PLAINTIFF,
v.
TURNER CONSTRUCTION COMPANY, AMIS INC. AND ARIS DEVELOPMENT CORPORATION, DEFENDANTS. TURNER CONSTRUCTION COMPANY, THIRD-PARTY PLAINTIFF, V. TRIDENT MECHANICAL SYSTEMS, INC., TRIDENT MECHANICAL SYSTEMS, INC., A DIVISION OF DUALSTAR TECHNOLOGIES CORP., TRIDENT MECHANICAL SYSTEMS, INC., A WHOLLY-OWNED SUBSIDIARY OF DUALSTAR TECHNOLOGIES CORP., DUALSTAR TECHNOLOGIES CORP., ATKINSON KOVEN FEINBERG ENGINEERS LLP, SCHUMAN LICHTENSTEIN CLAMAN EFRON ARCHITECTS, CENTRAL SYNAGOGUE, AND AMTEX ELECTRICAL CORP., THIRD-PARTY DEFENDANTS. CENTRAL SYNAGOGUE, FOURTH-PARTY PLAINTIFF, V. ACCORDIA, INC. AND ACCORDIA, INC., D/B/A ACCORDIA NORTHEAST, FOURTH-PARTY DEFENDANTS.



The opinion of the court was delivered by: Sweet, District Judge.

  OPINION

Defendant and third-party plaintiff Turner Construction Company, Inc. ("Turner") has moved for summary judgment (1) dismissing the complaint of Central Synagogue Sanctuary ("Central Synagogue" or the "Synagogue"); or, in the alternative (2) contractual indemnity from Central Synagogue for the negligence of any subcontractor, including third-party defendants Amis, Inc. ("Amis"), Aris Development Corporation ("Aris"), and any other contractor, architect, engineer or attorney; (3) for insurance coverage by Central Synagogue and Wausau Business Insurance Company ("Wausau") due to Central Synagogue's alleged breach of contract in failing to insure Turner; and (4) such other relief as the Court deems proper, including costs and fees associated with bringing this motion. Central Synagogue opposes the motion. For the reasons set forth below, the motion will be denied.

Relevant Parties

Central Synagogue is a non-profit organization with offices at 123 East 55th Street, New York, New York.

Turner is a New York corporation with offices at 375 Hudson Street, New York, New York.

Facts

The following facts are undisputed, although the parties dispute the proper interpretation of several key contractual provisions.

Turner entered into an agreement with Central Synagogue on or about January 26, 1998 for construction consultancy services in connection with renovations at the Central Synagogue Sanctuary located at 652 Lexington Avenue, New York, New York. The Construction Management Consulting Agreement (the "Agreement") conferred several dozen specific responsibilities on Turner, including the management of all contractors, "coordination of safety and protection procedures," conducting "daily inspection of the work under construction," and monitoring the proper and timely receipt of "all necessary governmental and regulatory permits." (Rodgers Aff. Ex. A, Arts. 1-3.) Turner agreed generally to "perform such services, and take such other acts, in a timely, professional, and good and workmanlike manner, using its best skill and judgment, as are customarily and reasonably required to be taken by a construction manager in connection with a project of the nature, size and scope of the work." (Rodgers Aff. Ex. A Rider ¶ 11 (# CS003576).)

Article 6 of the Agreement required Turner to purchase insurance to cover both itself and the Synagogue from workers' compensation and bodily injury claims. In addition, that provision provides that "the Owner [Central Synagogue] shall name the Construction Manger [sic] [Turner] an additional insured party or cause its Contractors to so name the Construction Manager an additional insured party on the Contractor's insurances." (Rodgers Aff. Ex. A, Art. 6.) In a rider to the Agreement, Turner undertook responsibility for ensuring that the agreements with the other contractors contained all necessary insurance provisions:

Construction Manager shall consult with Owner and/or its insurance advisors with respect to insurance and bonding requirements for contractors, and shall cause such requirements to be included in the construction contracts when so directed by Owner.

(Rodgers Aff. Ex. A, Page B.)

Owner shall defend, indemnify and hold the Construction Manager harmless from claims arising out of the acts or omissions on the part of the architects, engineers, attorneys or contractors and shall cause its architects, engineers, attorneys and contractors to do likewise in a manner and form satisfactory to the Construction Manager.
Notwithstanding the above, it is understood and agreed that the Construction Manager shall be liable to the Owner, its successors and assigns, and shall indemnify Owner against Loss, liability, damages, costs, and expenses, including reasonable attorney fees for any negligence or willful misconduct of construction Manger [sic] or its officers, agents or employees, in the performance of its Services and the failure to perform its obligations under the contract which results in any loss, claim, or injury to the Owner, its successors or assigns.

(Rodgers Aff. Ex. A, Art. 7.) A rider to the Agreement provides that Turner "agrees it shall look solely to the insurance coverage of Owner where Turner is named as an additional insured for amounts within the stated limit of said coverage." (Id. at Page B.) Finally, Article 8 provides that the contract shall be governed by New York law.

Various contractors and subcontractors contracted to assist in the renovation work, including defendants Amis (general contractor) and Aris (roofing subcontractor), third-party defendants Trident Mechanical Systems, Inc. ("Trident") (heating, ventilation, and air conditioning design and installation), Atkinson Koven Feinberg Engineers, LLP ("AKFE"), Schuman Lichtenstein Claman Efron Architects ("SLCE"), and Amtex Electrical Corp. ("Amtex").

The Amis Contract with Central Synagogue provides in relevant part that Amis "shall be solely responsible for all construction means, methods, techniques, sequences and procedures and for safety precautions and programs in connection with the Work" and agreed that "neither Turner nor the Architect will be responsible therefor or have control or charge thereof." (Rodgers Aff. Ex. B, Art. IV.) Nor would Turner be responsible for the failure of Amis or any of its agents or subcontractors to carry out the work as per the directives in the contract documents. (Id.)

Notwithstanding the letter of the various contracts (and, in some cases, the New York City Fire Department's published rules), deposition testimony tends to establish that numerous necessary safety precautions were not taken. For instance, an active fire alarm panel was removed, and no temporary alarm panel was installed, leaving the Synagogue with no automatic fire alarm protection. (Greengrass Aff. Ex. 3 at 3.) No full-time Fireguard was present at the construction site. Compliance with the New York City Fire Department's published rules requiring that each torch operator hold a Certificate of Fitness, and that a particular quantity and distribution of fire extinguishers be at the location of any "hot work," were not monitored. (Id. at 2.) Exhaust fans were left running constantly for up to three days before the fire despite the lack of a fire alarm or other ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.