Duty to Defend Enforceable Even if Duty to Indemnify is Unresolved

A Connecticut court, applying plain language in a subcontract, has held that the sub must defend the general contractor in an injured worker lawsuit, even if the sub’s obligation to indemnify the GC is not yet established.

The worker was employed by a sub-sub, Gugliotti, and was injured when a “wooden, job-made ladder” shifted and fell. He sued the GC, claiming among other things that the GC had failed to vet the safety record of the sub, Red Thread. The GC demanded that Red Thread defend and indemnify the GC in the worker’s lawsuit, but Red Thread did not.

The GC moved for summary judgment on the issue of defense and indemnity obligations of Red Thread. In review, the court looked at the language of the subcontract. It read, in part, that Red Thread “agreed to assume the defense . . . of the General Contractor . . . in any claim, proceeding, lawsuit . . . arising out of an accident . . .that is caused by, connected with, arising out of, or resulting from the performance of the Subcontractor’s work.” The duty to defend further applied “even if the Subcontractor disputes its obligation to indemnify and hold harmless.”

Applying that language, the court held that Red Thread was obligated to defend the GC. But the court refused to grant summary judgment on the obligation to indemnify at this time, noting that there were some disputed facts about causation of the accident. The case is Henry v. C.E. Floyd Co., 2019 Conn. Super. LEXIS 2914 (Nov. 13, 2019).