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Walsh v. Lend Lease (US) Construction

Supreme Court of Rhode Island

March 24, 2017

Kevin Walsh
v.
Lend Lease (US) Construction, a/k/a Bovis Lend Lease, Inc. et al.
v.
Rossi Electric Company, Inc.

         Superior Court Newport County, NC 11-309 Walter R. Stone Associate Justice

          For Plaintiff: Matthew P. Cardosi, Esq. John A. Donovan, III, Esq.

          For Defendant: Joseph A. DiMaio, Esq. Shannon Gilheeney, Esq.

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

          OPINION

          William P. Robinson, Associate Justice

         The third-party plaintiff, Lend Lease (US) Construction (Lend Lease), appeals from the January 13, 2016 grant of summary judgment to the third-party defendant, Rossi Electric Company, Inc. (Rossi), in Newport County Superior Court. It further appeals from the denial of its cross-motion for summary judgment.[1] Lend Lease contends that the hearing justice erred in granting Rossi's motion for summary judgment and denying its motion for summary judgment because Rossi was required to defend and indemnify Lend Lease under the terms of the contract between the parties. This case came before the Supreme Court for oral argument on January 25, 2017, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After a close review of the record and careful consideration of the parties' arguments (both written and oral), we are satisfied that cause has not been shown and that this appeal may be decided at this time.

         For the reasons set forth in this opinion, we vacate the judgment of the Superior Court.

         I

         Facts and Travel

         The following facts are gleaned from the complaint in the instant case and the deposition of plaintiff, Kevin Walsh. In June of 2008, a construction project was ongoing at the Carnegie Abbey Tower in Portsmouth, R.I. Lend Lease was the general contractor on the project, and Rossi was a subcontractor doing electrical work. Mr. Walsh was employed by Comm-Tract Corporation, a subcontractor of Rossi. Mr. Walsh was doing "voice data, cable TV installation" on the project; he was "installing wiring throughout the building." On June 16, 2008, Mr. Walsh was severely injured when he tripped on a can of plumber's glue that was on the stairs between the first floor and the basement. On June 6, 2011, Mr. Walsh filed his complaint setting forth negligence claims against Lend Lease and against a subcontractor of Lend Lease doing plumbing work on the project-Delta Mechanical Contractors. Subsequently, Lend Lease filed the third-party complaint against Rossi with which we are concerned in this appeal.

         In the third-party complaint, Lend Lease contended that Rossi was contractually obligated to "defend, indemnify, and hold harmless * * * Lend Lease from and against any claim, cost, expense, or liability, including costs and attorney's fees, attributable to bodily injury caused by, arising out of, resulting from, or occurring in connection with the performance of the work at the 100 Willow Avenue project." Lend Lease additionally alleged that Rossi breached the contract between the parties because, despite the fact that it was obligated to "procure a commercial general liability insurance policy, * * * for its work at the 100 Willow Avenue Project, which policy was to name * * * Lend Lease * * * as [an] additional insured[] under the polic[y], " Rossi "has refused to afford coverage to * * * Lend Lease for Kevin Walsh's claims * * *." On October 20, 2015 and November 10, 2015 respectively, Rossi and Lend Lease each filed motions for summary judgment. A hearing on the motions was held on December 7, 2015.

         Subsequently, on January 13, 2016, an order entered granting Rossi's motion for summary judgment and denying Lend Lease's motion for summary judgment. Partial final judgment was entered on February 4, 2016, pursuant to Rule 54(b) of the Superior Court Rules of Civil Procedure. Lend Lease appealed from the decision of the Superior Court.

         II

         Standard ...


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