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Cacioppo v. Boeing Co.

Decided: May 3, 1977.

CIALI CACIOPPO AND ROSALIA CACIOPPO, PLAINTIFFS,
v.
THE BOEING COMPANY ET AL., DEFENDANTS, AND THE BOEING COMPANY AND SUMMIT APARTMENTS, INC., DEFENDANTS AND THIRD PARTY PLAINTIFFS, V. A KERZNER, INC., THIRD-PARTY DEFENDANT AND FOURTH PARTY PLAINTIFF, V. LASKER-GOLDMAN CORP. ET AL., FOURTH-PARTY DEFENDANT



Morrison, J.c.c., Temporarily Assigned.

Morrison

This is a motion for summary judgment brought by a fourth-party defendant Lasker-Goldman in this very complex litigation. By way of general background, the main action has been initiated via the complaint of one Giali Cacioppo. Cacioppo appears to have been injured by a cinderblock which struck him on the head while he was engaged in his employment on a construction site.

Lasker-Goldman, is a defendant*fn1 solely on the basis of the fourth-party complaint of A. Kerzner & Sons, Cacioppo's employer. Lasker-Goldman was the "construction manager" for this project; Kerzner was doing structural work thereon. Both these parties appear to be contractors engaged by the direct defendants, Summit, Inc. and The Boeing Co.

We note that the complexity of this situation is in no way ameliorated by Kerzner's trifurcated status. Kerzner is:

1. The employer of the injured plaintiff Cacioppo, it has paid worker's compensation and by virtue of N.J.S.A. 34:15-8 cannot be, nor has it been named as, a direct defendant;

2. The named third-party defendant by virtue of an alleged written indemnification agreement with two of the defendants, Summit, Inc. and The Boeing Co.,*fn2 in the main action, and

3. Fourth-party plaintiff on its claim for common-law indemnification against a number of fourth-party defendants whom it has named.

At the outset it must be stated that there is no express contract for indemnification between movant Lasker-Goldman and Kerzner. Kerzner's claim for indemnification is based on the common-law doctrine of implied indemnification.

Movant Lasker-Goldman asks the court to dismiss Kerzner's fourth-party complaint against it on the basis that Kerzner is precluded, as a matter of law, from asserting the common-law doctrine of implied indemnification. Lasker-Goldman arrives at this conclusion by "extending" the holding of Mayer v. Fairlawn Jewish Center ,*fn3 38 N.J. 549 (1962).

The court has carefully reread Mayer and cannot adopt counsel's reading. While Mayer is instructive, in that it interpolated the major premise behind implied indemnification into its holding, that case is not controlling since it dealt with indemnification under a written contract. "We are not dealing here with a claim of express or implied indemnity or restitution." Mayer at 561. Therefore, the court must resolve this problem under those cases which expressly address themselves to implied indemnification.

We begin our discussion by acknowledging the well-settled principle in New Jersey that on a challenge to the sufficiency of a complaint "the plaintiff is entitled to a liberal interpretation of its contents and to the benefits of all its allegations and the most favorable inferences which may reasonably be drawn from them." Rappaport v. Nichols , 31 N.J. 188, 193 (1959). Given these guidelines, it becomes our task to carefully examine Kerzner's status in the light of the doctrine of implied indemnification and determine if there is any possibility that Kerzner can sustain this cause of action against Lasker-Goldman.

As has previously been touched upon, Kerzner's liability if any, results solely from its being a contractual indemnitor; no joint tortfeasor ...


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