On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8363-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Simonelli.
In this declaratory judgment action, plaintiff Frank Metta, d/b/a Frank Metta Builders (FMB), sought a declaration that defendant Erie Insurance Exchange (Erie) is required to pay any judgment FMB obtains on its contractual indemnification claims against Erie's insured, defendant Real Madeira, Inc. (Madeira) in the personal injury action, Costa v. Estates at Princeton Junction, L.P., Docket No. MID-L-4644-05 (the Costa Action). Diego Costa (Costa), the plaintiff in the Costa Action, alleges that he was injured on a construction site while working for Madeira, who was FMB's subcontractor.
FMB filed a motion for summary judgment, and Erie filed a cross-motion for summary judgment. Erie appeals from the April 9, 2007 order granting FMB's motion and denying it's cross- motion.
The facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motions viewed in a light most favorable to the non- moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). On January 25, 2005, FMB contracted with defendant Toll Bros., Inc. to perform carpentry work at a 600- unit development located on property in Princeton owned by defendant Estates at Princeton Junction (EPJ). FMB subcontracted the framing work to Madeira. The contract between FMB and Madeira (the contract) contained the following provision:
INDEMNIFICATION: TO THE FULLEST EXTENT PERMITTED BY LAW, [MADEIRA] SHALL INDEMNIFY AND HOLD HARMLESS [METTA] AND [EPJ] AGAINST ANY CLAIMS, DAMAGES, LOSSES AND EXPENSES, INCLUDING LEGAL FEES, ARISING OUT OF OR RESULTING FROM PERFORMANCE OF SUBCONTRACTED WORK TO THE EXTENT CAUSED IN WHOLE OR IN PART BY [MADEIRA] OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY [MADEIRA].
The contract also required Madeira to name FMB as an additional insured under Madeira's commercial general liability insurance policy. Erie issued a commercial general liability insurance policy (the policy) to Madeira, which named FMB as an additional insured. The policy contains the following provisions, in relevant part:
a. We will pay those sums that [Madeira] becomes legally obligated to pay as damages because of "bodily injury" . . . to which this insurance applies. We will have the right and duty to defend [Madeira] against any "suit" seeking those damages. However, we will have no duty to defend [Madeira] against any "suit" seeking damages for "bodily injury" . . . to which this insurance does not apply.
This insurance does not ...