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No Common Law Indemnity from Subcontractor Without a Grave Injury

Construction Worker with helmet at work Site

In the recent case of Mouta v. Essex Mkrt. Dev. LLC, the Appellate Division of the Supreme Court of New York ruled on the contractor’s liability for the injuries sustained to a worker in a gravity-related accident. Although the contractor can normally be held liable for a construction worker’s injuries pursuant to various New York Labor Laws such as sections 200, 240(1) and 241(6), the defendant contractor in this case had an indemnity agreement with the construction worker’s employer, a subcontractor on the project. The court upheld the indemnity agreement and let the contractor off the hook.

Even without a contractual indemnity claim, a contractor may still sometimes be indemnified by a subcontractor under common law, but only if the worker suffered a grave injury in the accident. The basis for this rule is Workers Compensation Law section 11. This law prohibits an injured employee from suing the employer and also prohibits third-party actions for indemnification against the employer unless there is evidence of a grave injury. The law goes on to spell out what type of injury constitutes a grave injury:

  • Death
  • Permanent and total loss of use or amputation of an arm, leg, hand or foot
  • Loss of multiple fingers
  • Loss of multiple toes
  • Paraplegia
  • Quadriplegia
  • Total and permanent blindness
  • Total and permanent deafness
  • Loss of nose
  • Loss of ear
  • Permanent and severe facial disfigurement
  • Loss of an index finger
  • Acquired brain injury caused by external physical force resulting in permanent total disability

In the event a construction worker suffers one of these injuries and sues the contractor or property owner, the defendant in the case may seek indemnity from the subcontractor which employed the injured worker, even without a contractual provision for indemnification.

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