The issues presented by this ruling concern: (i) the right of a third-party tortfeasor to obtain indemnification from an employer pursuant to an express agreement between that tortfeasor and the employer, and (ii) the right of that tortfeasor to name the employer as a third-party defendant in an action brought by the injured employee.
Plaintiff, Eugene White, Jr., (White) was injured while working on the premises of defendant, third-party plaintiff, Newark Morning Star Ledger (Ledger) on or about September 5, 1987. White was then an employee of third-party defendant Colin Service Systems, Inc. (Colin). Colin had contracted to supply labor and services to Ledger pursuant to an agreement between Colin and Ledger dated October 1, 1985 (labor agreement) and White was on the Ledger's premises pursuant to that agreement. White received a worker's compensation award from Colin for his injuries.
In this action White filed a complaint against Ledger charging that while he was on Ledger's premises, Ledger, through its agents, servant and/or employees, was so negligent as to allow a large roll of paper to fall and crush his hand. Ledger filed a third-party complaint against Colin claiming that if it (Ledger) is adjudged liable to White, it is entitled to a defense, indemnification and costs from Colin pursuant to the labor agreement. White did not bring a direct claim against Colin.
Ledger's claim for indemnification against Colin is based on the express terms of the labor agreement, and more particularly paragraph 10. The full text of that paragraph is annexed to this opinion as schedule "A."
Colin moved for summary judgment dismissing Ledger's third-party complaint and this is the ruling on that motion.
The Workers' Compensation Act (act), N.J.S.A. 34:15-1 et seq., provides the exclusive remedy against the employer for a work-related injury sustained by an employee. By accepting the benefits of the act, the employee forsakes a tort action against the employer. Ramos v. Browning Ferris Industries, 103 N.J. 177, 510 A.2d 1152 (1986).
In Port Auth. v. Honeywell Prot. Serv., 222 N.J. Super. 11, 535 A.2d 974 (App.Div.1987) the court in commenting upon the rights of a third-party tortfeasor against an employer stated:
A corollary to this fundamental policy is that because the employer is removed from tort liability, it is not subject to the provisions of the Joint Tortfeasors Contribution Law (N.J.S.A. 2A:53A-1 et seq.). Thus a "third-party tortfeasor may not obtain contribution from an employer, no matter what may be the comparative negligence of the third party and the employer." Ramos v. Browning Ferris Industries, supra, 103 N.J. at 184 [510 A.2d 1152]. The exclusive-remedy provision precludes a claim for contribution against an employer whose concurring negligence contributed to the injury of an employee. Id. at 185 [510 A.2d 1152]. [citations omitted]
Although a third-party tortfeasor cannot seek contribution from an employer, it may obtain indemnification where that course is specifically permitted by way of an express contract. The Act does not preclude the employer's assumption of a contractual duty to indemnify a third party through an express agreement. Ramos v. Browning Ferris Industries, supra, 103 N.J. at 191 [510 A.2d 1152].
Strong public policy considerations along with the general rules governing the construction of contacts dictate that when the meaning of the indemnification clause is ambiguous, it should be strictly construed against the indemnitee. Ibid. Thus, "a contract will not be construed to indemnify the indemnitee against losses resulting from its own negligence unless such an intention is expressed in unequivocal terms." Ibid. [citations omitted] Subject to this principle, the parties to a contract can generally allocate the burden of risk as to any potential tort liability in any manner they may choose. [at 19-20, 535 A.2d 974]
It is clear that the act does not preclude a third-party tortfeasor from obtaining indemnification from an employer where such indemnification is permitted by an ...