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Lougee v. Benchmark Assisted Living, LLC

Superior Court of Rhode Island

August 25, 2016

REBECCA MARIE LOUGEE, and LAURENCE W. LOUGEE, JR. Plaintiffs,
v.
BENCHMARK ASSISTED LIVING, LLC d.b.a. BENCHMARK SENIOR LIVING Defendant/Third-Party Plaintiff.
v.
DECASTRO LANDSCAPING, LLC Third-Party Defendant.

         Newport County Superior Court

          For Plaintiff: Neil P. Galvin, Esq.

          For Defendant: Jamie J. Bachant, Esq. Leslie D. Parker, Esq. Joseph A. DiMaio, Esq.

          DECISION

          STONE, J.

         Before the Court is the Defendant/Third-Party Plaintiff Benchmark Assisted Living, LLC d.b.a. Benchmark Senior Living's (Benchmark) motion for partial summary judgment on its Second Amended Third-Party Complaint's count for contractual indemnity against DeCastro Landscaping, LLC (DeCastro). On May 2, 2016, the Court held a hearing on the motion and heard arguments from both parties. Jurisdiction in this Court is pursuant to G.L. 1956 § 8-2-14 and Rule 56 of the Rhode Island Superior Court Rules of Civil Procedure. For the reasons set forth herein, Benchmark's motion for partial summary judgment is granted.

         I

         Facts and Travel

         On October 15, 2012, DeCastro contracted with Benchmark to provide various winter services-namely, ice management and snow removal on the walkways and parking lot-at Benchmark's Newport, Rhode Island facility (Blenheim).[1] The agreement stated that "ice management services will be initiated and completed at the judgment of DeCastro Landscaping, LLC." DeCastro Landscaping Proposal, 1 (incorporated by reference as Exhibit A to the October 15, 2012 Contract Services Agreement) (Proposal). Beyond that, the agreement supplied no limitation on when ice melt would be applied to the walkways.

         In pertinent part, the contract between Benchmark and DeCastro further provided an indemnification clause. It stated as follows:

"Indemnification. To the maximum extent permitted by law, Contractor agrees to indemnify and save harmless Benchmark Community from all suits, actions, claims, demands, damages, losses, expenses and costs, including reasonable attorneys' fees and court costs, of every kind and description, at law and in equity, which Benchmark Community may incur or suffer resulting from, in connection with, or arising out of any of Contractor's acts, errors or omissions involving negligence or bad faith, or any breach of any contractual duty due to Benchmark Community by Contractor, its agents, servants, employees or sub consultants, or from the use or possession of any goods or services provided by Contractor or any of its agents, servants or employees pursuant to the Agreement." Additional Terms and Conditions, 1 (incorporated by reference as Exhibit B to the October 15, 2012 Contract Services Agreement).

This contract remained in full effect between the parties throughout the entirety of the underlying events.

On December 29, 2012, a winter storm passed through Newport, Rhode Island and left snow totals ranging from one to five inches in the area. As a result and pursuant to the contract, DeCastro performed plow, sanding, shoveling, and ice melt services at Blenheim on December 29, 2012. The following morning, on December 30, 2012 at roughly 9:45 a.m., DeCastro once again serviced Blenheim, but this time it did not perform any ice melt services to the walkways as evidenced by its own records. As set forth in the contract, ice melt was to "be initiated and completed at the judgment of DeCastro." Proposal, 1.

         Later that morning, at approximately 10:15 a.m., the Plaintiff in the underlying law suit, Rebecca Marie Lougee (Lougee), slipped and fell on ice on a Blenheim walkway. By all accounts, that fall took place within roughly a half hour or forty-five minutes of DeCastro having serviced the facility. Thereafter, Lougee filed suit against Benchmark alleging that it failed to properly maintain the walkway that she fell on at Blenheim.

         On July 29, 2015, Benchmark filed its Second Amended Third-Party Complaint against DeCastro. Count II of the Second Amended Third-Party Complaint set forth a claim for contractual indemnification based on the October 15, 2012 contract between the parties. Benchmark alleges that its liability, if any, arises out of DeCastro's acts, errors, or omissions in the execution of its ...


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