REBECCA MARIE LOUGEE, and LAURENCE W. LOUGEE, JR. Plaintiffs,
BENCHMARK ASSISTED LIVING, LLC d.b.a. BENCHMARK SENIOR LIVING Defendant/Third-Party Plaintiff.
DECASTRO LANDSCAPING, LLC Third-Party Defendant.
County Superior Court
Plaintiff: Neil P. Galvin, Esq.
For Defendant: Jamie J. Bachant, Esq. Leslie
D. Parker, Esq. Joseph A. DiMaio, Esq.
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.
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). 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.
pertinent part, the contract between Benchmark and DeCastro
further provided an indemnification clause. It stated as
"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
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.
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
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 ...