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Supreme Court

Daniel A. Ferguson et al. v. Marshall Contractors, Inc. d.b.a. Algonquin Builders, and Bennington Iron Works v. Ajax Construction Company.

: : : No. 98-440-Appeal. (PC 89-4104)

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Present: Weisberger, C.J., Lederberg, Bourcier, Flanders, and Goldberg, JJ. OPINION Weisberger, Chief Justice. This case comes before us on an appeal by the cross-claimant, Marshall Contractors, Inc. d.b.a. Algonquin Builders (Marshall), from a judgment entered in the Superior Court in favor of Bennington Iron Works (Bennington), the codefendant, against whom the cross-claim was filed. We vacate the judgment and remand the case to the Superior Court for a trial on the merits. The facts insofar as pertinent to this appeal are as follows. Marshall was the general contractor on a project to build a manufacturing facility in Dartmouth, Massachusetts, for the Titleist Golf Division of the Acushnet Company (Titleist). Marshall entered into a contract with Bennington to provide the steel for the project. Bennington in turn contracted with Ajax to do the steel-construction work. According to Ajax, B ennington provided the steel material for the project and Ajax provided the labor. -1-

The plaintiff, Daniel Ferguson (Ferguson), was an employee of Ajax when he was injured while working on this project. He collected workers' compensation benefits, but then brought suit against Marshall and B ennington for their alleged negligence in connection with his injury. Marshall filed a cross-claim against B ennington for indemnity and contribution, but that claim was severed from the Ferguson negligence claims at the time of trial before any evidence was presented. After the

presentation of Ferguson's evidence, Bennington moved for and was granted a directed verdict. Thereafter, the jury returned a verdict for Ferguson and against Marshall in excess of $1 million. After Marshall's motion for a new trial was denied, it appealed the denial of its new-trial motion and the granting of the directed verdict in favor of Bennington. After a show-cause hearing, this Court entered an order denying the appeal and affirming the judgment of the Superior Court. Ferguson v. Marshall Contractors, 644 A.2d 310 (R.I. 1994) (Ferguson I). In our order affirming the judgment of the Superior Court we pointed out that Marshall had not opposed the granting of the directed verdict in favor of Bennington at the trial stage and, therefore, had no basis for challenging the directed verdict on appeal. It should be noted that Marshall had presented no evidence against Bennington at the initial trial of the case and had presented no evidence of any kind before the granting of a directed verdict by the trial justice in favor of Bennington and against Ferguson. The case was then returned to the Superior Court for further proceedings in respect to Marshall's cross-claim against Bennington. In the Superior Court, Bennington moved for summary judgment against Marshall on its cross-claim on the ground that the issue of duty vis-

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