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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS KENT, SC. (Filed: November 9, 2012) ROLAND ANDERSON, INDIVIDUALLY AND ON BEHALF OF ALEXIS ANDERSON, a minor v. CARDI CORPORATION, and BARTOLINI BROS. CONSTRUCTION CO., INC. v. CASHMAN EQUIPMENT CORPORATION & C.R.C. COMPANY, INC. : : : : : : : : : : : : : : SUPERIOR COURT

C.A. No. KC 11-0441

DECISION RUBINE, J. This matter arises out of a worksite injury sustained by Roland Anderson (hereinafter "Plaintiff" or "Anderson") while working on construction at the Sakonnet River Bridge. The Defendants, Cardi Corporation ("Cardi") and Bartolini Bros. Construction Co., Inc. ("Bartolini"), and Third-Party Defendants, Cashman Equipment Corporation ("Cashman") and C.R.C. Company, Inc. ("CRC"), are contractors and subcontractors involved in the work on the site where Plaintiff was injured. Each contract and subcontract contains indemnification

provisions that prompted many of the instant dispositive motions. The Court heard argument on the parties motions on September 10, 2012, and this Decision constitutes the Courts resolution of all pending dispositive motions. The pending motions before the Court are: 1. Cashmans Motion for Partial Summary Judgment based upon the contention that Cashman is entitled to contractual indemnification from CRC under the terms of the Cashman-CRC subcontract;

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2. Cashmans Motion for Partial Summary Judgment with respect to whether CRC is entitled to indemnification from Cashman because Mr. Andersons injury occurred as a result of CRCs own acts or omissions; 3. Cashmans Motion for Partial Summary Judgment with respect to whether CRC is entitled to contribution from Cashman because, as a matter of law, Cashman may not be deemed a joint tortfeasor as Mr. Anderson made an election to recover under the Rhode Island Workers Compensation Act; 4. Cashmans Motion for Summary Judgment with respect to Cardis Third-Party Complaint for contribution in which Cashman contends that it may not be deemed a joint tortfeasor with respect to Mr. Andersons injuries, in that Anderson made an election to recover under the Rhode Island Workers Compensation Act; 5. CRCs Motion for Summary Judgment against Cardi with respect to Cardis third- party claims for indemnification from CRC, in that it is contended that such claims are barred due to a purported "Full and Final Release of Claim" as well as the language of the Cashman-CRC subcontract; and 6. CRCs Motion to Dismiss Cashmans Cross-Claim based upon the Prior Pending Action Doctrine.

I FACTS AND TRAVEL On October 23, 2009, Plaintiff sustained a worksite injury while working on renovations to the Sakonnet River Bridge. It is undisputed that on or about April 2009, the Rhode Island Department of Transportation awarded Cardi the "prime contract" to complete renovations and

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construction of the Sakonnet River Bridge (the "Project"). It is further undisputed that Cardi executed a subcontract with Cashman, whereby Cashman would perform certain subcontract work on the Project, including the installation of the land-based and water-based piers which would support the new bridge. On or about April 28, 2009, Cashman executed a subcontract with CRC ("Cashman-CRC subcontract"), whereby CRC would perform certain work on the Project--primarily all of the land-based foundation work. Under the Cashman-CRC subcontract, CRC agreed to furnish all supervision, labor, tools, equipment, materials (except sheet pile, wales and struts, H-pile, and concrete materials which were to be provided by Cashman), and supplies necessary to complete its subcontract work. The Cashman-CRC subcontract contained an insurance provision that required CRC to procure and maintain workers compensation benefits for its employees.1 The Cashman-CRC subcontract contained an additional provision requiring CRC to indemnify and defend Cashman, Cardi, and the State of Rhode Island from all claims, suits, or liability for "damages to property . . . injuries to persons, including death, and from any other claims, suits or liability on account of acts or omissions of [CRC] . . . to the extent that damages and/or injuries arise from such acts or omissions of [CRC]." On October 21, 2009, Anderson, a union pile driver and welder, began work on the Project as a CRC employee. His work consisted of welding and driving sheet piles. On October 23, 2009, Plaintiff was injured in the course of assisting with unloading new fifty to sixty-foot Ibeams from a flatbed trailer. A crane was used initially to move the I-beams off the trailer. After he returned to welding, the CRC foreman instructed Anderson to move three cut-off Ibeam sections to an area where additional work would be done to prepare them for installation.

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It is uncontested that CRC procured a workers compensation policy affording benefits for its employees. It is also undisputed that Anderson, at the time of his injuries, was an employee of CRC, and elected to receive workers compensation benefits with respect to his injuries. 3

At that time, the crane previously used to unload the new I-beams had been moved by CRC to assist with driving sheet piles. Instead of moving the crane back, the foreman directed Plaintiff to use a Caterpillar 350 Excavator to move the cut-off I-beam sections. Justin Paoloni ("Paoloni"), a Cardi employee, operated the excavator. Plaintiff wrapped two three-inch-wide nylon web slings around a thirty-two-foot section of I-beam, weighing 117 pounds per foot, and attached the slings to the teeth of the excavator bucket. Paoloni then proceeded to raise the I-beam to a height of four to five feet and swing it to the left while Anderson was walking alongside, guiding it by hand and without the use of taglines. Thereafter, the beam began to swing back and forth at the level of Andersons head. At his deposition Plaintiff testified that he tried to protect himself, but the I-beam struck his hand and jaw before falling on his leg and knocking him to the ground. Emergency response crews were summoned, and Anderson was treated for his injuries at Rhode Island Hospital. Following his injury, Plaintiff applied for and received workers compensation benefits under the workers compensation policy procured by his employer, CRC. On April 4, 2011, Plaintiff filed the instant complaint against Cardi and Bartolini Bros. Construction Co., Inc., alleging that Cardi had a duty to, among other things, supervise the construction site, that Cardi breached its duty by failing to supervise Plaintiff, and as a result of that breach, Plaintiff sustained injury. Plaintiff asserted two negligence claims against Cardi. On June 30, 2011, Cardi filed a Third-Party Complaint joining CRC and Cashman as third-party defendants. The claims set forth in the Third-Party Complaint included claims that both CRC and Cashman agreed to indemnify Cardi for Plaintiffs personal injury claims. Specifically, Cardi, in its Third-Party Complaint, asserted claims against Cashman for contribution, contractual indemnification, and breach of contract; Cardi also asserted claims

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against CRC for contractual indemnification and breach of contract.

On October 3, 2011,

Cashman answered Cardis Third-Party Complaint. Cashmans Answer included a Cross-Claim against CRC for contractual indemnification. CRC answered Cashmans Cross-Claim on

October 27, 2011; in its Answer, CRC asserted a Cross-Claim against Cashman for indemnification and contribution arising from the Cashman-CRC subcontract. This tangled web of contracts and subcontracts each containing indemnification provisions has led to the aforementioned dispositive motions. This Court will discuss each motion seriatim.

II STANDARD OF REVIEW A Summary Judgment This Court will grant a motion for summary judgment only if ",,after reviewing the admissible evidence in the light most favorable to the nonmoving party[,]" Liberty Mut. Ins. Co. v. Kaya, 947 A.2d 869, 872 (R.I. 2008) (citation omitted) "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as matter of law." Super. R. Civ. P. 56(c). In opposing a motion for summary judgment, the nonmoving party ",,has the burden of proving by competent evidence the existence of a disputed issue of material fact and cannot rest upon mere allegations or denials in the pleadings, mere conclusions or mere legal opinions." Liberty Mut., 947 A.2d at 872 (quoting DAllesandro v. Tarro, 842 A.2d 1063, 1065 (R.I.

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2004)). To meet this burden, ",,[a]lthough an opposing party is not required to disclose in its affidavit all its evidence, he [or she] must demonstrate that he [or she] has evidence of a substantial nature, as distinguished from legal conclusions, to dispute the moving party on material issues of fact." Bourg v. Bristol Boat Co., 705 A.2d 969, 971 (R.I. 1998) (quoting Gallo v. Natl Nursing Homes, Inc., 106 R.I. 485, 489, 261 A.2d 19, 21-22 (1970)).

B Motions to Dismiss In reviewing a Rule 12(b)(6) motion to dismiss, "[the] Court examines the allegations contained in the plaintiff's complaint, assumes them to be true, and views them in the light most favorable to the plaintiff." Ellis v. Rhode Island Pub. Transit Auth., 586 A.2d 1055, 1057 (R.I. 1991); see also Builders Specialty Co. v. Goulet, 639 A.2d 59, 60 (R.I. 1994); Rhode Island Affiliate, ACLU, Inc. v. Bernasconi, 557 A.2d 1232, 1232 (R.I. 1989). "[T]he sole function of a motion to dismiss is to test the sufficiency of the complaint," and thus, this Court need not look further than the complaint in conducting its review. See Bernasconi, 557 A.2d at 1232. The motion will only be granted "when it is clear beyond a reasonable doubt that the plaintiff would not be entitled to relief from the defendant under any set of facts that could be proven in support of the plaintiff's claim." Ellis, 586 A.2d at 1057; see also Builders, 639 A.2d at 60.

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III ANALYSIS A Cashman's Motion for Partial Summary Judgment as to Cashman's Cross-Claim against CRC for Contractual Indemnification Cashman argues that, as a matter of law, it is entitled to contractual indemnification from CRC under the express terms of the Cashman-CRC subcontract. CRC reads the Cashman-CRC subcontract to limit CRCs liability to only those injuries arising from CRCs acts or omissions. CRC contends that its liability for Andersons injury is a disputed question of material fact such that summary judgment on Cashmans claim for contractual indemnification is premature. In Cosentino v. A.F. Lusi Construction Co., Inc., the Rhode Island Supreme Court held that an action seeking to enforce a contractual indemnification provision is not statutorily barred by the exclusivity of the Rhode Island Workers Compensation Act. 485 A.2d 105, 107-08 (R.I. 1984). The Lusi Court explained that "[a]lthough G.L. 1956

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