As we go about our daily lives, we often find ourselves on property that we neither own nor control. This can include the hallway of a hotel in which we are staying on vacation, the floor of the supermarket in which we purchase our weekly groceries, and the sidewalk from which we exit our apartment in order to begin our day, as well as many other areas.
When an accident happens due to a property owner’s negligence, the injured person has the burden of proving that the entity that controlled the area in which the accident happened breached the applicable duty of care.
In a case recently considered by the Massachusetts Appeals Court, the plaintiff in an underlying case was successful in proving negligence, but another dispute arose between the insurance company, a property owner, and an independent contractor regarding who was responsible for paying the judgment awarded to the plaintiff in the personal injury lawsuit arising from the accident.
Facts of the Case
In the case, the plaintiff was an insurance company who filed suit against its insured, seeking a declaratory judgment to the effect that the plaintiff had no duty to indemnify the defendant for the verdict in a personal injury lawsuit filed against it and an independent contractor.
The underlying lawsuit was brought by a woman who had tripped and fallen on a “cold joint” constructed by the independent contractor on property owned by the insured. In that case, the jury had assigned 55% of the fault to the independent contractor and 30% to the insured. The insurance company refused to indemnify the insured for the judgment, relying on an “independent contractors exclusion” contained in the general liability policy purchased by the insured.
The trial court granted summary judgment to the insurance company, and the insured appealed.
The Court’s Decision
The Commonwealth of Massachusetts Appeals Court affirmed the lower court’s judgment. The independent contractor (who was also a party to the action) argued that the insurance company had failed to preserve its right to raise the exclusion during the underlying tort action and was, therefore, estopped from doing so in the current action. The appellate court disagreed, holding that the contractor raised the issue for the first time on appeal, and thus its argument on this issue was waived.
With regard to the defendants’ argument that the phrase “arising out of” in the insurance policy at issue was ambiguous, the reviewing court found no ambiguity and went on to hold that, since the injury that gave rise to the underlying tort action was the “cold joint” created by the contractor, the plaintiff in that action’s injury clearly “arose out of” the contractor’s actions. Thus, the independent contractor’s exclusion applied, and no indemnification was required.
Speak to a Knowledgeable Cape Cod Premises Liability Lawyer
Slip and fall accidents can be made more difficult when the ownership, control, or insurance coverage of the property upon which the plaintiff fell is in dispute. If you or a loved one has been hurt on business property or on another person’s land, the Law Offices of John C. Manoog, III, in Hyannis and Plymouth can advise you concerning a Cape Cod premises liability claim. Call us at 888-262-6664 – the sooner, the better, since these types of cases demand a prompt, fair, and thorough investigation if at all possible.
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