Page 1
Ce se 1:02-cv-01812-FLW-AMD Document 61 Filed 01/16/2004 Page 1 of 4 KPM/mam #090/6809 MURPHY & O'CONNOR, LLP By: Kevin P. McCarty, Esquire Commerce Center, First Floor 1810 Chapel Avenue West, Suite 130 Cherry Hill, N3 08002-4607
(856) 663-9292 ATTORNEYS FOR DEFENDANT MADISON CONSTRUCTION COMPANY and MADISON MATRIX CONCRETE CORP., (improperly pleaded as Madison Concrete Construction)
GARY PANTALONE, JR., and JANINE PANTALONE, his wife UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY Plaintiffs, Civil Action No. 02CV1812 (1BS) vi.
FOX RICHARD CONTRACTOR, INC.;
MADISON CONSTRUCTION COMPANY; NOTICE OF MOTION
MADISON CONCRETE CONSTRUCTION
COMPANY; GILBANE BUILDING
COMPANY; and JOHN DOES 1-10, jointly, severally and in the alternative, RECFIWED
Defendants.
FIAN 16 onna TO: Guy Mercogliane, Esquire AT830__ eg SWEENEY & SHEEHAN, P.C. WILLIAM T. WALSH 216 Haddon Avenue “ERK Westmont, NJ 08108 ATTORNEYS FOR DEFENDANT RICHARD FOX CONTRACTORS, INC. PLEASE TAKE NOTICE that defendants Madison Construction Company and Madison Matrix Concrete Corp. (improperly pleaded as Madison Concrete Construction), will make application to the United States District Court for the District of New Jersey, Camden Vicinage, Mitcheli H. Cohen U.S. Courthouse, 1 John F. Gerry Plaza, Camden, New Jersey, on FRIDAY,
Page 2
Cc a q Dated: | ve\ok
ase 1:02-cv-01812-FLW-AMD Document 61 Filed 01/16/2004 Page 2 of 4 FEBRUARY 6, 2004, at 9:30 a.m., or a5 500n as counsel may be heard for an Order granting summary judgment as set forth in the attached proposed form of Order.
MURPHY & 0’ CONNOR, LLP
Attorneys for Defendants, Madison Construction Company and Madison Matrix Concrete Corp’ (improperly pieaded as Madison Concy —
a By:
“KEVIN P. McCARTY, ESQUIRE
Page 3
2 q se 1:02-cv-01812-FLW-AMD Document 61 Filed 01/16/2004 Page 3of4 The original of the within Notice of Motion for Summary Judgment, Statement of Material Facts, Memorandum of Law, Order and Proof of Mailing, has been filed with the United States District Court for the District of New Jersey, Camden Vicinage, Mitchel'H. Cohen U.S. Courthouse, 1 John F. Gerry Plaza, Camden, New Jersey 08101.
PROOF GF MAILING
On of PHLIOAA fe, 20 OF I, the undersigned, mailed the following: Notice of Motion for Summary Judgment, Statement of Material Facts, Memorandum of Law, Order and Proof of Mailing by regular mail, addressed to Dennis P. Blake, Esquire BROWN & CONNERY, LLP 360 Haddon Avenue P.O. Bax 539 Westmont, NJ 08108 ATTORNEY FOR PLAINTIFF GARY A. PANTALONE Guy Mercogliano, Esquire SWEENEY & SHEEHAN, P.C.
216 Haddon Avenue Westmont, NJ 08108 ATTORNEYS FOR DEFENDANT RICHARD FOX CONTRACTORS, INC.
Jeffrey 5. Bell, Esquire GOLDEN, ROTHSCHILD, SPAGNOLA, LUNDELL, LEVITT & BOYLAN, P.C.
1011 Route 22 West, Suite 300 P.0. Box 6881 Bridgewater, NJ 08807 ATTORNEYS FOR DEFENDANT, GILBANE BUILDING COMPANY
Robert G. Devine, Esquire WHITE AND WILLIAMS, LLP 222 Haddon Avenue Westmont, NJ 08108-2828 ATTORNEYS FOR DEFENDANT, THE BEDWELL COMPANY Salvatore A. Alessi, Esquire THE LAW OFFICES OF SALVATORE A. ALESSI Grove Plaza, Suite 3B Grove Street Haddon Heights, NJ 08035 ATTORNEYS FOR THIRD-PARTY DEFENDANT ROYAL MECHANICAL
Page 4
Q).
se 1:02-cv-01812-FLW-AMD Document 61 Filed 01/16/2004 Page 4 of 4
I certify that the foregoing statements made by me are true. | am aware that if any of the foregoing statements made by me are wilfully false, I am subject to punishment.
MURIEL A. MASSI, Secretary
Dated: J-/e oY
Page 5
Ca
e 1:02-cv-01812-FLW-AMD Document61-2 Filed 01/16/2004 Page 1 of 4 KPM/mam #090/6809 MURPHY & O'CONNOR, LLP By: Kevin P. McCarty, Esquire Commerce Center, First Floor 1810 Chapel Avenue West, Suite 150 Cherry Hill, NJ 08002-4607
(856) 663-9292 ATTORNEYS FOR DEFENDANT MADISON CONSTRUCTION COMPANY and MADISON MATRIX CONCRETE CORP., (improperly pleaded as Madison Concrete Construction)
GARY PANTALONE, JR., and JANINE :
PANTALONE, his wife : UNITED STATES DISTRICT COURT : FOR THE DISTRICT OF NEW JERSEY Plaintiffs, Civil Action No, 02CV1812 (JB5) Vi FOX RICHARD CONTRACTOR, INC; MADISON CONSTRUCTION COMPANY; STATEMENT OF MATERIAL MADISON CONCRETE CONSTRUCTION : FACTS OF DEFENDANTS COMPANY; GILBANE BLHLDING : MADISON CONSTRUCTION COMPANY; and JOHN DOES 1-10, : COMPANY AND MADISON jointly, severally and in the alternative, : MATRIX CONCRETE CORP. (improperly pleaded as Madison Defendants. Concrete Construction)
Defendants Madison Construction Company and Madison Matrix Concrete Corp., offer the following Statement of Material Facts in support of their Mation for Summary Judgment.
1. This litigation arises out of a construction site accident that occurred on June 19, 2000. At that time, plaintiff Gary Pantalone who was in the employ of defendant Royal Mechanical was struck by the bucket of a trackhoe which was being operated by an employee of defendant Richard Fox Contractor. Plaintiff Gary Pantalone brought the instant suit to recover damages for injuries he sustained in this accident.
Page 6
Ca
e 1:02-cv-01812-FLW-AMD Document61-2 Filed 01/16/2004 Page 2of4
2. Defendant Madison Construction Company (hereinafter “Madison”), was a subcontractor to co-defendant The Bedwell Company. Subcontract Agreement between The Bedwell Company and Madison is attached hereto as Exhibit “A".
3 Madison in turn subcontracted a portion of its work to defendant Richard Fox
Contractor (hereinafter “Fox’). Subcontract Agreement between Madison and Fox is attached hereto as Exhibit “B”.
4. As set farth in Exhibit “8”, Fox was obligated to secure commercial general liability coverage in the amount of $imiliion dollars per occurrence. Pursuant to paragraph 7 of the Insurance Rider to the Subcontract Agreement, Fox was to have made certain that the Contractor (Madison) and General/Prime Contractor (Bedwell) were named as additional insureds on the policy, even for claims regarding their sole negligence.
5. Moreover, the Madison/Fox Subcontract Agreement (at paragraph 8 of the Insurance Rider) requires that Fox assure that its liability policy be endorsed to reflect that itis “primary and nan-contributory” for the benefit of Madison and Bedwell. In essence, Fox agreed that its liability coverage would be primary, and there would be no obligation for the Bedwell and Madison carriers to contribute on a co-primary basis.
6. Fox secured commercial general liability coverage through Merchants Insurance Group with the appropriate policy limits, however that policy and its endorsements failed to name Bedwell as an additional insured in any respect, much less an additional insured on a primary and non-contributory basis even for claims involving Bedwell’s sole negligence. Merchants Insurance
Company Policy No. 66335 is attached hereto as Exhibit “C”.
Page 7
cae 1:02-cv-01812-FLW-AMD Document61-2 Filed 01/16/2004 Page3of 4
7. Additionally, the Merchants policy fails to name Madison as an additional insured on a primary and non-contributory basis, even for Madison’s sole negligence. To the contrary, the Certificate of Insurance (attached hereto as Exhibit “D”) indicates that Madison is considered an additional insured merely with respect to “work performed by the named insured”, i.e. Fox alone.
8. Numerous demands for defense and indemnification were issued to both Fox and its insurance carrier Merchants, which were ignored. As a result, Madison included in its answer to plaintiff's Complaint a Counterclaim against Fox for breach of contract for the failure to secure primary and non-contributory coverage as required in the Subcontract Agreement. Madisan’s Answer to plaintiff's Complaint is attached hereto as Exhibit “D”.
9. In further effort to enforce the defense and indemnification obligations mandated by the Madison/Fox Subcontract Agreement and the Merchants’ Certificate of Insurance, Madison filed a declaratory judgment action against Merchants in the Superior Court of New Jersey, Law Division. A copy of the Declaratory Judgment Complaint is attached hereto as Exhibit "E”; that action remains pending.
10. After extended negotiations with Merchants Insurance Company, that carrier recently agreed to defend and indemnify Madison, and pay its litigations costs incurred after the Gate of the agreement.
11. Presently pending before this Court is Bedwell’s Motion for Summary Judgment seeking defense and indemnification from Madison pursuant to the terms of the Bedwell/Madison Subcontract Agreement. Madison submits that any defense and indemnity obligations owed to Bedwell were assumed and undertaken by Fox pursuant to the clear and unequivocal terms of the
Madison/Fox Subcontract Agreement.
Page 8
Cale 1:02-cv-01812-FLW-AMD Document 61-2 Filed 01/16/2004 Page 4of4 with its contractual obligations.
Dated: | inlo
12. However to date, neither Fox nor Merchants Insurance Company has agreed to assume the defense and indemnification of Bedwell pursuant to the previously-discussed provisions of the Bedwell/Madison Subcontract Agreement and Madion/Fox Subcontract Agreement. By way of this Motion for Summary Judgment, Madison seeks entry of an Order compelling Fox to comply MURPHY & O° CONNOR, LLP Attorneys for Defendants, Madison Construction Company and Madison Matrix Concrete Corpe{improperly pleaded as Madison Concrete Constructi ——S By: So Ty 2 a KEVIN P. McCARTY, ESQUIRE
Page 9
Cage 1:02-cv-01812-FLW-AMD Document 61-3 KPM/mam #090/6809 MURPHY & O'CONNOR, LLP By: Kevin P. McCarty, Esquire Commerce Center, First Floor 1810 Chapel Avenue West, Suite 130 Cherry Hill, NJ 08002-4607
(856) 663-9292 Madison Concrete Construction)
GARY PANTALONE, JR., and JANINE PANTALONE, his wife Plaintiffs, Vv.
FOX RICHARD CONTRACTOR, INC.;
MADISON CONSTRUCTION COMPANY;
MADISON CONCRETE CONSTRUCTION
COMPANY; GILBANE BUILDING
COMPANY; and JOHN DOES 1-10, jointly, severally and in the alternative, Defendants.
Filed 01/16/2004 Page1of5 ATTORNEYS FOR DEFENDANT MADISON CONSTRUCTION COMPANY and MADISON MATRIX CONCRETE CORP., (improperly pleaded as UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY Civil Action No. 02CV1812 (IBS) MEMORANDUM OF LAW IN SUPPORT OF THE MOTION FOR SUMMARY JUDGEMENT OF DEFENDANTS MADISON CONSTRUCTION COMPANY AND MADISON MATRIX CONCRETE CORP. (improperly pleaded as Madison Concrete Construction) Defendants, Madison Construction Company and Madison Matrix Concrete Corp. (improperly pleaded as Madison Concrete Construction) (hereinafter “Madison”), submit this Memorandum of Law in support of their Motion for Summary Judgment.
STATEMENT OF FACTS
Madison will rely upon the Statement of Material Facts submitted herewith.
Page 10
Ca
e 1:02-cv-01812-FLW-AMD Document61-3 Filed 01/16/2004 Page 2of5
ARGUMENT
I, Fox is Contractually Obligated to Assume the Defense and Indemnification of Bedwell
The Madison/Fox Subcontract Agreement provides, in pertinent part, as follows:
Z. THE CONTRACT DOCUMENTS
The CONTRACT DOCUMENTS consist of this subcontract and any exhibits attached, as well as CONTRACTOR'S contract with owner (or other CONTRACTOR) and any general conditions, special, supplementary or other condition, plans, specifications, drawings or modificatians thereto...
*
SUBCONTRACTOR expressly declares and acknowledges that, before signing this contract, SUBCONTRACTOR has examined the MAIN CONTRACT (defined for purposes of this SUBCONTRACT AGREEMENT to be that contract entered into by the CONTRACTOR with either a higher tier CONTRACTOR on this project or the owner, as appropriate), its plans and specifications and location where the work is to be done and acknowledge that it fully understands all of the requirements, covenants and restrictions contained in those documents. Furthermore, SUBCONTRACTOR expressly assumes toward the CONTRACTOR all of the obligations and responsibilities with respect to the work to be performed under the SUBCONTRACT AGREEMENT by SUBCONTRACTOR which CONTRACTOR, by the CONTRACT DOCUMENTS, assumes toward the owner (or other hiqher tier CONTRACTORS). (emphasis supplied
Additionally, the Insurance Rider which is expressly made part of the Subcontract
Agreement! provides as follows:
* See Exhibit “B” at paragraph 4.
Page 11
Ca
e 1:02-cv-01812-FLW-AMD Document61-3 Filed 01/16/2004 Page 3of5
15. Subcontractor agrees to indemnify, hold harmless and defend Maadison Construction Company, and General Contractor, Construction Manager, Prime Contractor, Owner... . It_is further expressly agreed that Subcontractor assumes the fullest extent of all obligations to indemnify and defend ali parties whom Madisan Construction
Company is obligated to indemnify and defend in Madisan Construction Company's contract with General Contractor...” {emphasis supplied).
Plainly stated, if the Court determines that the indemnification provisions of the Bedwell/Madison Subcontract Agreement are enforceable and do not violate any statute, rule or public policy, it necessarily follows that any such indemnity obligations were assumed and undertaken by Fox pursuant to the plain and unambiguous language of the Madison/Fox Subcontract Agreement cited above.
Bedwell contends in its pending Motion for Summary Judgment that its separate Subcontract Agreement with Madison obligates Madison to provide full indemnification, unless Bedwell is ultimately found to be 100% at fault for the happening of the accident. Moreover, Bedwell argues that the Subcontract Agreement compels Madison to pay ail of Bedwell’s past and future attorney fees incurred in the defense of plaintiff's claims. It is Madison’s intention to oppose Bedwell’s motion, and enforcement of the indemnification clause requires that it be found unambiguous, that it be sufficiently specific to apprise Madison that it was undertaking to provide indemnity for Bedwell’s own negligence and that the underlying claim of the plaintiff “arises out of” Madison’s performance of the contracted work. See Ramos v. Browning Ferris Industries, 103 N.J. 177 (1986), Mantilla v. M.C. Mall Associates, 167 N.J. 262 (2001), Azurak v. Corporate Property Investors, 175 N.J. 110 (2003), Stier v. ShopRite, 201 N.J. Super 142 (App. Div. 1985),
Vitty v. D.C.P, Corp., 268 N.J, Super 447 (App. Div. 1993), Franklin Mutual Ins. Co. vy. SCC Iden,
Page 12
Be 1:02-cv-01812-FLW-AMD Document 61-3 Filed 01/16/2004 Page4of5
Ins. Co., 275 N.J. Super 335 (App. Div. 1994), Liberty Vill v. West American Ins., 308 N.J. Super 393 (App. Div. 1998). Additionally, in order to succeed in its motion for Summary judgment, it will be necessary for Bedwell to demonstrate that its indemnification clause does not run afoul of N.J.
S.A. 2A:40A4-1.
In the event that Bedwell prevails on its motion, and Madison becomes obligated to reimburse counsel fees and provide a defense and indemnification, those obligations have been assumed by Fox by reason of its separate Subcontract Agreement with Madison.
There can be no dispute that Madison was seeking, through paragraph 2 of the Subcontract Agreement and paragraph 15 of the Insurance Rider, to pass dawn to Fox any defense and indemnification obligations Madison assumed toward Prime Contractor Bedwell and other “higher tier” contractors. Plainly and unequivocally stated is that Fox “assumes to the fullest extent all obligations to indemnify all parties whom Madison Construction Company is obligated to indemnify and defend.,.”, There is no need to interpret this lanquage as its inarquable meaning is that Fox was Undertaking to step into Madison’s shoes for the purposes of any defense and indemnity contractual duties this contractor had assumed on the project.
It is anticipated that Fox may argue that the indemnification clauses in the Madison/Fox Subcontract Agreement are unenforceable as violative of N.J.S.A. 24:4-A-1. However, any contention that the indemnity clauses violate the “sole negligence” prescriptions of the statute misconstrues the issue to be decided here. Madison is not seeking defense and indemnification for itself regardless of whether or not it was 100% at fault for the happening of the accident; appropriately, that is already being provided by Merchants Insurance Company. To the contrary,
and to the extent that they are deemed enforceable, Madison is seeking to have Bedwell’s
Page 13
LA.
e 1:02-cv-01812-FLW-AMD Document61-3 Filed 01/16/2004 PageS5of5 indemnification clause enforced against Fox as is required under the Madison/Fox Subcontract Agreement. As set forth at length in Bedwell’s pending motion for summary judgment, the indemnification clause in its contract with Madison expressly provides that no defense and indemnification is owed if it is ultimately concluded that the accident was the result of Bedwell’s sole and exclusive negligence, CONCLUSION Madison Construction Company entered into an agreement whereby, as Bedwell arques in its pending motion for summary judgment, it assumed an obligation to defend and indemnify Bedwell unless that prime contractor was deemed solely liable for plaintiff's accident. Subsequently, Fox entered into an agreement clearly and unequivocally obligating it to assume any defense and indemnity obligations undertaken by Madison in Madison’s agreements with higher tier contractors such as Bedwell. Bedwell now seeks to enforce its indemnification clause as against Madison, and Madison in turn asks that this Court enter an Order providing that any such defense and indemnification obligations owed to Bedweil have been contractually assumed by Fox. Respectfully submitted, MURPHY & Q’ CONNOR, LLP Attorneys for Defendants, Madison Construction Company and Madison Matrix Concrete Corp. (improperly pleaded as Madison crete, Constructio, —
By: _° 7" KEVIN P. McCARTY, ESQUIRE \\ Dated: eles
Page 14
Cage 1:02-cv-01812-FLW-AMD Document 61-4 — Filed 01/16/2004 Page 1 of 1 _ KPM/mam #090/6809 MURPHY & O'CONNOR, LLP By: Kevin P. McCarty, Esquire Commerce Center, First Floor 1810 Chapel Avenue West, Suite 130 Cherry Hill, NJ 08002-4607
(856) 663-9292 ATTORNEYS FOR DEFENDANT MADISON CONSTRUCTION COMPANY and MADISON MATRIX CONCRETE CORP., (improperly pleaded.as Madison Concrete Construction)
GARY PANTALONE, JR., and JANINE PANTALONE, his wife UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
Plaintiffs, Civil Action No. 02CVi81i2 (JIBS) V.
FOX RICHARD CONTRACTOR, INC.:
MADISON CONSTRUCTION COMPANY; :
MADISON CONCRETE CONSTRUCTION : ORDER FOR SUMMARY JUDGMENT COMPANY; GILBANE BUILDING :
COMPANY; and JOHN DOES 1-10, jointly, severally and in the alternative, Defendants.
THIS MATTER having come before the Court on motion of defendants, Madison Construction Company and Madison Matrix Concrete Corp. (improperly pleaded as Madison Concrete Construction), for summary judgment and the Court having reviewed the moving papers, any opposition thereto, and the record herein, it is hereby ORDERED that defendants’ motion for surmmary judgment is granted and defendant Richard Fox Contractor is hereby ordered to indemnify, hold harmless and defend defendant The Bedwell Company in this litigation.
FREDA L. WOLFSON, U.5.0.J.
Back to 
