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Berkley is not obligated to compensate masonry companies



A WR Berkley Corp. unit is not required to indemnify a masonry company for a worker injured in a construction accident based on the construction contract, a federal appeals court said Thursday, confirming a lower court decision.

WR Berkley unit Firemen & # 39 ;s Insurance Co., Washington, DC, was the insurer for Norfolk, Massachusetts-based MP Masonry Inc., according to Thursday's ruling from the Second U.S. Circuit Court of Appeals in New York Firemen & # 39; # 39; s Insurance Company of Washington, DC v. Thomas J. Story, Aerotek, Inc.

In 2012, Rochester-based Wegman Food Markets Inc. reached an agreement with staffing firm Hanover, Maryland-based Aerotek inc. to provide staffing services in the supermarket chain.

According to the staff agreement, Aerotek awarded Mr. Story to work as a foreman at a construction site where Wegmans built a new store, the decision said.

Wegmans later agreed with MP Masonry to carry out construction work. According to his building contract, MP Masonry agreed to defend, injure and hold harmlessly Wegmans and its agents, employees and representatives.

During construction, an MP mason was injured at the construction site and sued Wegmans and Mr. others in state court. Wegmans and Mr. Story filed its claim against MP Masonry, which sought to enforce the provisions on damages and defense in its building contract.

Firefighters accepted the offer for Wegmans, but not for Story. It then brought an action before the American District Court in Rochester, seeking a declaratory judgment. There was no obligation to defend and harm Mr. Story. Aerotek also filed a cross-claim in the lawsuit.

The district court ruled in favor of the firefighters and was upheld by a unanimous panel court with three judges. In the construction contract, MP Masonry agreed to defend and harm Wegman's agents, employees and representatives, "the decision states.

“The staff agreement expressly provided that assigned employees ̵

1; and Story was an employee – were employees of Aerotek and not Wegmans. "

Even assuming some ambiguity as to whether Story is entitled to indemnity, the language used by the parties will not express the unmistakable intent required by New York law," it said.

"Aerotek claims that it would be unreasonable to demand that Story listed by name be covered. That point is well taken.

"But the compensation clause is ambiguous not because it does not list the story by name, but because it does not include his role as foreman, construction, manager or member of the construction management team," the decision states, confirming the lower court's decision that Firefighters and MP Masonry were not guilty of defending and harming Mr. Story.

Berkley's attorney Brian P. McDonough, founder and managing partner of McDonough Cohen & Maselek LLP in Boston, said in a statement, "The panel's decision is a further recognition of the significant burden of New York law in establishing the right to

"The conclusion is that where, as here, the parties choose to use" special staff "" – that is, temporary staff obtained from a staffing company – to carry out work on a project, any intention of these "special staff" received by a contractual compensation clause is described citly. "

Aerotek's and Mr. Story's attorneys did not respond to a request for comment.

A federal appeals board last week upheld a lower court decision in favor of a Berkley unit in a coverage dispute with a developer in which the insurer said there was no claim under its property policy because nothing had inadvertently occurred.

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