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Magazzu v. Volmar Services

December 21, 2009

ANTHONY F. MAGAZZU AND MICHELE MAGAZZU, H/W, PLAINTIFFS,
v.
VOLMAR SERVICES, INC., GMT CONTRACTING, CORP., JOHN DOES 1 AND 2, FICTITIOUS NAMES OF UNKNOWN INDIVIDUALS, AND ABC AND XYZ, FICTITIOUS NAMES OF UNKNOWN CORPORATIONS OR OTHER ENTITIES, DEFENDANTS,
v.
DOUGHERTY CONTRACTING COMPANY, THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Hillman, District Judge

OPINION

Plaintiff, Anthony F. Magazzu, suffered severe personal injuries as a result of a work-related accident that occurred while performing roofing services at Fort Dix military base in Fort Dix, New Jersey. Magazzu was employed by third-party defendant, Dougherty Contracting Company ("Dougherty"), who worked at Fort Dix as a subcontractor for defendant/third-party plaintiff, Volmar Services, Inc. ("Volmar"). Magazzu and his wife, Michele Magazzu, filed a complaint in this Court against Volmar and defendant, GMT Contracting Corporation ("GMT"), a general contractor of roofing work performed at Fort Dix and to whom Volmar served as a subcontractor.

Volmar, in turn, filed a third-party complaint against Dougherty, alleging, among other causes of action, that Dougherty contractually agreed to indemnify Volmar. In response, Dougherty filed a Motion for Summary Judgment, arguing that the indemnification agreement between the parties is unenforceable in relation to Magazzu's accident and, alternatively, that any indemnity claim asserted by Volmar against Dougherty should be adjudicated in a trial separate from Magazzu's claims against Volmar and GMT.

For the reasons expressed below, Dougherty's Motion for Summary Judgment against Volmar's claim for contractual defense and indemnification is denied and Dougherty's motion requesting separate trials is granted.

I. JURISDICTION

This Court exercises subject matter jurisdiction over the underlying claim pursuant to 28 U.S.C. § 1332. There is complete diversity between plaintiffs and defendants in the underlying action.*fn1 Plaintiffs, Anthony and Michele Magazzu, are individuals who reside in Philadelphia, Pennsylvania and are citizens of the Commonwealth of Pennsylvania. Defendant, Volmar, is incorporated in the State of New Jersey with its principal place of business in Wrightstown, New Jersey. Defendant, GMT, is incorporated in the State of New Jersey with its principal place of business in Jersey City, New Jersey. Plaintiffs allege that the amount in controversy exceeds $75,000.

II. BACKGROUND

In July 2007, Volmar entered into a "Purchase Order" agreement with Dougherty. The contract was drafted by a Volmar project manager and was signed by representatives of both parties. In accordance with the contract, Dougherty agreed to provide roofing services for a building at Fort Dix. In particular, Dougherty contracted to "[s]upply all supervision, labor, material, equipment, and insurance to install a new GAF built up roofing system over building 5952 in Fort Dix, NJ." As a subcontractor, Dougherty further agreed to "adhere to Volmar Services Progress Schedule" and to "follow its Approved Quality Control Plan as well as its Approved Safety Plan." Dougherty also assumed responsibility "for all property protection and protection of the work area when performing work."

In addition, the Purchase Order required that Dougherty maintain insurance, including commercial general liability insurance and commercial umbrella or excess coverage, for which Volmar was to be named a primary additional insured. Moreover, Paragraph 7 of the "General Provisions" of the Purchase Order provided:

To the fullest extent permitted by law, the Subcontractor shall defend, indemnify and hold harmless the Contractor, the Contractor's other Subcontractors, the Architect/Engineer, the owner and their agents, consultants and employees (the indemnities) from all claims for bodily injury and property damage that may arise from the performance of the Subcontract work to the extent of the negligence attributed to such acts or omissions by the Subcontractor, the Subcontractor's subcontractor or anyone employed directly or indirectly by any of them or by anyone whose acts any of them may be liable.

Pursuant to the parties' agreement, Dougherty began to perform roofing work at the Fort Dix military base. On September 26, 2007, Anthony Magazzu, a Dougherty employee, was performing roofing work atop a building at Fort Dix when he fell approximately thirty-five feet and suffered severe personal injuries. Brian Shuttleton, a Dougherty employee who acted as a safety monitor for the rooftop work, testified at his deposition that, before Magazzu fell, he warned Magazzu twice that he was nearing the edge of the roof. Magazzu denies that he heard any such warnings from Shuttleton.*fn2 Nevertheless, as a result of the accident, Magazzu received workers' compensation benefits furnished by Dougherty's workers' compensation carrier.

On April 28, 2008, Magazzu filed a complaint in this Court against Volmar, alleging negligence and breach of contract and seeking more than $150,000 in damages.*fn3 He later amended his complaint, adding as a defendant GMT, the general contractor to whom Volmer served as a subcontractor for the Fort Dix roofing services.

In response to Magazzu's complaint, Volmar answered, asserted cross-claims, and, in October 2008, impleaded Dougherty into the action. Against Dougherty Volmar alleged four counts:

(1) contractual defense and indemnification, (2) contribution, (3) common law indemnification, and (4) negligence. Ultimately, Volmar and Dougherty stipulated to the dismissal, with prejudice, of all counts except for that alleging contractual defense and indemnification. In May 2009, Volmar sought to amend its third-party complaint against Dougherty to add a claim for breach of contract. Pursuant to the Magistrate Judge's order issued in October 2009, Volmar was granted leave to amend its complaint. In the amended complaint, Volmar submits that ...


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