Sloppy Drafting Needlessly Extends Litigation

A crane operator was tragically killed when a beam being hoisted by the crane crashed onto the top of the cab. The beam fell because the sling selected for the load was inadequate. The sling had been selected by workers for the steel erection company that had hired the crane company. Thus, the accident arose by actions of a second-tier sub, the steel erector, which killed the employee of the third-tier sub.

The accident was in New York, which meant that claims by the worker’s estate were asserted against the owner, GC and first-tier sub under New York’s Labor Law, §§ 200, 240 and 241. Discovery narrowed the issues to where it became apparent that the second-tier sub, CRV, had control over selection of the incorrect sling, and no other party had control over or involvement in that action.

Thus, the first-tier sub, AGL, had a valid claim for indemnity by CRV. But the indemnity clause in their subcontract had been sloppily prepared. Indeed, other portions of the subcontract may also have been sloppily prepared:

CRV argues that AGL's contractual indemnification cross claim against it is meritless and must be dismissed. CRV . . . alleges that the agreement is contained in "two contradictory documents" which contain undecipherable typographical errors, nonsense and misidentification and mislabeling of the subject parties. CRV also claims that any indemnity provisions in these documents refer to a company that is not even a party to this action and describes the indemnity provisions as "nonsensical."

CRV describes the agreement as lacking a coherent, unambiguous indemnity clause. Indeed, CRV continues, the clause states that "contractor" shall hold "contractor" harmless, and the agreement erroneously identifies AGL as both "contractor" and "subcontractor." Also, adds CRV, the written agreement references an entity named PCM Group that is otherwise unidentified.

Based on this record, the trial court refused to enter summary judgment in favor of AGL, since the subcontract presumably prepared by AGL was confusing. As a result, sloppiness in contract preparation meant that AGL would not be entitled to an early exit from the litigation.

The case is Glazier-Smith v Briarwood MP LLC, Supreme Court, Kings County, 2020 N.Y. Misc. LEXIS 3103 (June 29, 2020).

About Stan Martin

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Stan Martin holds a law degree and an undergraduate degree in architecture. He has been involved with the construction industry for more than 45 years, working in construction prior to law school and beginning his construction law practice. Over the course of his career, he has served on boards and committees for organizations including the Associated General Contractors of Massachusetts, the Boston Society of Architects, and the Massachusetts Building Congress.

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