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In the Matter of the Complaint of Miller's Launch

February 27, 2011

IN THE MATTER OF THE COMPLAINT OF MILLER'S LAUNCH, INC., AS OWNER OF A 1978 31-FOOT MOTOR VESSEL, AND
CITY OF NEW YORK, DEPARTMENT OF ENVIRONMENTAL PROTECTION, AS OWNER, AND
MILLER'S LAUNCH, INC., AND MILLER'S LAUNCH, INC., AS BAREBOAT CHARTER OR OWNER PRO HAC VICE, OF A 1994 34-FOOT MOTOR VESSEL, FOR EXONERATION FROM OR LIMITATION OF LIABILITY, PETITIONERS.



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

MEMORANDUM DECISION AND ORDER

Before me is a motion for summary judgment by third-party defendant Gaeta Interior Demolition, Inc. ("Gaeta") seeking to dismiss the third-party complaint filed against it by petitioners Miller's Launch and the City of New York (together, "petitioners"). Because I find that the contract between petitioners and Gaeta did not contain an indemnification provision, I grant Gaeta's motion and dismiss it from the action.

BACKGROUND

Familiarity with this maritime action is presumed. Briefly, petitioners instituted this action pursuant to the Limitation of Liability Act, 46 U.S.C. § 30505 et seq., after Marcus Link, an employee of Gaeta, commenced a personal injury lawsuit in state court claiming that petitioners were negligent in transporting debris from navigable water at the Bowery Bay Sewage Treatment Plant. This negligence, Link asserted, led to his injuries that he sustained when he was loading one of Gaeta's garbage trucks.

With regard to the present motion, petitioners filed a third-party complaint against Gaeta, claiming, inter alia, that Gaeta, which was retained by Miller's Launch to dispose of garbage containers at Bowery Bay, had agreed to indemnify and defend petitioners. Gaeta now moves for summary judgment, raising several arguments. It asserts that as an employer, it cannot be liable for contribution or indemnification to any third party because Link did not sustain a "grave injury" within the meaning of New York Workers' Compensation Law; that Gaeta did not expressly agree to indemnify Miller's Launch in the contract between the two parties; that a separate agreement, a "Vendex questionnaire" it signed, did not contain any indemnification language; and that it is not bound by any provision in any agreement between the City and Miller's Launch.

Petitioners' opposition seeks to maintain Gaeta in the action on one ground only: they claim that Gaeta agreed to indemnify Miller's Launch in the contract between the two parties.*fn1

Petitioners argue that the indemnification contract between Miller's Launch and Gaeta consists of two documents. The first is a request for proposal that was faxed by Miller's Launch to Gaeta on March 7, 2002. This three-page document concluded by stating the following:

Additionally the City requires all subcontractors in order to be approved by the City to perform work under an agency contract to agree and hold harmless the contractor and the City of New York and the specific agency, as regards [sic] all work performed and to agree to defend said entities against all suits that may arise from work performed.

Gaeta responded with a price quote, and when the City permitted Miller's Launch to commence work, Miller's Launch sent another letter to Gaeta dated May 28, 2002. This letter began by prefacing that it is a "brief agreement to finalize our agreement for your review, comment and approval." It further provided that "[u]nder this agreement [Gaeta] shall supply and deliver per the Contract specifications as detailed in the request for proposal dated March 7, 2002, and attached hereto and made a part of this agreement. . . ." Gaeta countersigned this letter.

DISCUSSION

In reviewing a motion for summary judgment, the Court's responsibility "is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986)). "A dispute regarding a material fact is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Weinstock v. Columbia Univ., 224 F.3d 33, 40-41 (2d Cir. 2000) (quoting Anderson, 477 U.S. at 248, 106 S. Ct. 2505, and discussing summary judgment's historic origins "as a tool for clearing the calendar of doomed lawsuits").

Summary judgment is appropriate on contract claims when the "contractual language is plain and unambiguous." Zurich Am. Ins. Co. v. ABM Indus., 397 F.3d 158, 164 (2d Cir. 2005). "Ambiguity exists when a contract is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business." Id. (citation and quotation marks omitted). "The determination of whether a contract term is ambiguous is a threshold question of law for the court." Walk-In Medical Centers, Inc. v. Breuer Capital Corp., 818 F.2d 260, 263 (2d Cir. 1987).

This search for ambiguity notwithstanding, a contract assuming an indemnity obligation "must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed." Tonking v. Port Auth. of N.Y. and N.J., 3 N.Y.3d 486, 490, 787 N.Y.S.2d 708 (2004). "Nevertheless, a contract of indemnity need not explicitly state an intent that the undertaking extend to the indemnitee's own negligent acts. Instead, where there is all-encompassing language in an indemnification agreement, the New York Court of Appeals has divined the 'unmistakable intent of the parties' to indemnify against the indemnitee's negligent acts." Gibbs-Alfano v. Burton, 281 F.3d 12, 19 (2d Cir. 2002) (quoting Levine v. Shell Oil Co., 28 N.Y.2d 205, 212, 321 N.Y.S.2d 81 (1971)); see also Haynes v. Kleinewefers, 921 F.2d 453, 456 (2d Cir. 1990).

Unlike most litigation over indemnification provisions -- as reflected in the standard quoted above -- the argument here is not over the scope of the indemnification clause, but whether the parties agreed to any indemnification clause at all. Still, the same principle governs this dispute -- a contract that purports to shift liability through an indemnity clause must be construed ...


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