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Leonard Fujarski and Linda Fujarski v. L.F. Driscoll Co

May 19, 2011

LEONARD FUJARSKI AND LINDA FUJARSKI, PLAINTIFFS,
v.
L.F. DRISCOLL CO.,
DEFENDANT.
L.F. DRISCOLL CO.,
THIRD-PARTY PLAINTIFF/CROSS-DEFENDANT,
v.
BAMCO, INC., THIRD-PARTY DEFENDANT/CROSS-CLAIMANT.



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

MEMORANDUM OPINION & ORDER

This matter having come before the Court on the cross-motions for summary judgment of L.F. Driscoll Co. and Bamco, Inc. in their capacities as third-party plaintiff/cross-defendant and defendant/cross-claimant, respectively; and

On January 11, 2006, L.F. Driscoll Co., construction manager for a construction site in Atlantic City, New Jersey, entered into a subcontractor agreement with Bamco, Inc., for its carpentry services; and

In that agreement, Bamco agreed to "indemnify and hold harmless" L.F. Driscoll "from and against any and all claims . . . [and] reasonable legal fees and liability of any kind which

[L.F. Driscoll] may incur . . . by reason of . . . injury to . . . any person . . . caused or alleged to have been caused in whole or part by any act or omission of [Bamco] . . . ." (Docket No. 27-5 at 23); and

The indemnification agreement also covered "claims by employees of [Bamco] . . . in connection with the Work," and "claims caused . . . in part by the negligence of [L.F. Driscoll]" (id.); and

The indemnification agreement further providing that L.F. Driscoll may give notice to Bamco of any covered claim, and Bamco shall defend L.F. Driscoll against any action on that claim, and pay all defense costs, including attorney's fees (id.); and

The subcontractor agreement also providing that Bamco agreed to procure insurance, general and umbrella, and name L.F. Driscoll as an additional insured on its policies, and that both the general and umbrella policies shall be primary to L.F. Driscoll's insurance;*fn1 and

On June 14, 2007, plaintiff Leonard Fujarski, an employee of Bamco, was injured by a ladder during his work at the Atlantic City construction site; and

On September 29, 2009,*fn2 Fujarski having filed suit in this Court against L.F. Driscoll, claiming, inter alia, that it, as the construction manager, was negligent in its duty to provide a safe work site*fn3 ; and

On November 19, 2009, L.F. Driscoll having filed a third-party complaint against Bamco, alleging that Bamco has breached the indemnification provision in their subcontractor agreement because it failed to provide it with a defense to Fujarski's claims, and because Bamco agreed to indemnify it for claims such as Fujarski's; and

On February 5, 2010, Bamco's insurer having accepted L.F. Driscoll as an additional insured on Bamco's primary policy up to $1 million, and having accepted L.F. Driscoll's tender of defense; but

Bamco's insurer having denied any obligation for defense and indemnification beyond the $1 million primary coverage, finding that the indemnification agreement between Bamco and L.F. Driscoll was not clear as to Bamco's obligation to indemnify L.F. Driscoll for L.F. Driscoll's own negligence (Docket No. 27-9); and

Bamco having filed a motion for summary judgment, arguing that L.F. Driscoll's third-party complaint against it is moot because of its insurer's acceptance of L.F. Driscoll's defense and the ...


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