Kelley Kronenberg Partner Jesse Siegel achieved complete transfer of defense and indemnification obligations for his general contractor client in a New York Labor Law case in Kings County. 

Plaintiff claimed he was injured while working at a Brooklyn construction project, alleging he fell from a retaining wall due to failure to provide proper safety devices. He asserted violations of Labor Law §§ 200, 240(1), and 241(6), along with various orthopedic injuries. 

Jesse reviewed the contractual relationship between the general contractor and the subcontractor that employed plaintiff. The subcontract contained an indemnification clause as well as Additional Insured language; the general contractor was properly listed as an Additional Insured on the subcontractor’s insurance policy. 

Jesse prepared a tender letter to the subcontractor’s carrier with supporting documentation. Without even the need to bring a subsequent third-party action against the subcontractor, the carrier accepted the tender without reservation, agreed to assume defense of both the general contractor and the co-defendant property owner, and committed to reimburse all defense costs already incurred. 

Indemnification is the total shifting of economic loss to a party chiefly responsible for that loss. See, McDermott v. City of New York, 50 N.Y.2d 211 (1980). “The right to indemnify, as distinguished from contribution, is not dependent upon the legislative rule. It springs from contract, express or implied, and full not partial reimbursement is sought.” Id. Contractual indemnity arises not out of an agreement to perform work, but out of an agreement to indemnify. See, Levine v. Shell Oil Company, 28 N.Y.2d 205 (1971). The Court of Appeals has held that, “a party is entitled to full contractual indemnification [for damages incurred in a personal injury suit] provided that the ‘intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances.” Drzewinski v. Atlantic Scaffold & Ladder Co., 70 N.Y.2d 774 (1987). 

This acceptance successfully transferred both defense and indemnification obligations to the subcontractor and its carrier. 

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