Fireman’s Fund Ins. Co. v. Falco Constr. Corp., 493 F. Supp. 2d 143 (D. Mass. 2007)
A property insurer, Fireman’s Fund Insurance Company, asserted claims against a general contractor and subcontractor after an insured home sustained fire damage. The general contractor had performed extensive renovations on the home, and the subcontractor had constructed a masonry fireplace at the home. In Counts I and II, the insurer sought recovery from the subcontractor for improperly installing the fireplace on theories of negligence and breach of contract. In Counts III and IV, the insurer brought the same claims against the general contractor for failing to supervise. The general contractor subsequently filed a cross-claim for indemnification against the subcontractor.
The subcontractor moved for summary judgment on the general contractor’s indemnification claim, arguing that, since both claims asserted by the insurer against the general contractor were premised upon the general contractor’s own independent negligence, there was no basis for an indemnification claim, as the alleged liability was not vicarious or derivative.
Granting the subcontractor’s motion for summary judgment, the court held that the general contractor’s possible liability in contract to insurer, for breach of contract allegedly resulting from the subcontractor’s negligence, did not provide a right to tort indemnification from the subcontractor (rather the remedy would lie elsewhere such as under a theory of breach of contract). The court also found that the general contractor was not vicariously liable for the subcontractor’s alleged negligence in building a fireplace. The subcontractor was an independent contractor and thus did not fall within the exception for work that is inherently or intrinsically dangerous. The court found that the building of a fireplace as alleged in this case was not an inherently dangerous job, nor did the construction present a peculiar risk. Rather, it was the allegedly negligent manner in which the subcontractor performed the work that caused the risk.