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`INDEX NO. 190114/2013
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`Exhibit C
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`

`

`INDEX NO. 190114/2013
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`FILED: NEW YORK COUNTY CLERK 06/19/2017 09:51 AM
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`2017 09:51 ‘
`RECHWE) WSC%§%Q11046//21%1/32017
`idsEE‘DOCNEW. YORK COUNTY CLERK 032015 04:07 PM
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`NYSCEF DOC. NO. 414
`RECEIVED NYSCEF: 03/13/2015
`NYSCEF DOC‘ N01 321
`SUPREME COURT OF THE STATE OF NEW YORK —— NEW YORK COUNTY
`
`
`
`PRESENT:
`
`HON. MARTIN SHULMAN
`Justice
`
`PART
`
`1
`
`Ralph P. North.
`
`-V.
`
`Air 8: Liquid Systems Corp., et al.
`
`INDEX No.
`
`190114/13
`
`The following papers, numbered 1 to 8 were read on this motion and cross-motion for contractual
`indemnification
`'
`
`PAPERS NUMBERED
`
`Notice of Motion - Affirmation - Exhibits A~O - Mem. of Law
`E—Fiied Doc. Nos. 227-244
`Answering Affirmation ~ Exhibits 1-23 - Mom. of Law
`' E-Fiied Doc. Nos. 245~26§
`Reeiy Morn. of Law
`E-Filed Doc. No. 278
`
`Notice of Cross—Motion - Affirmation - Exhibits A—C
`E-Filed Doc. Nos. 270—274
`Answering Affirmation - Exhibits A-F - Mom. of Law
`E-Fiied Doc. Nos. 279-286
`Reply Affirmation
`E-Filed Doc. No. 288
`Supp Aft. in Opp. {per Court's reguest) - Exhibits - Supp. I‘r‘ieT. of
`E.Filed Doc. Nos. 309-31
`I Supp. an. in Further Support
`’E-Filed Doc. Nos. 319-320
`
`Low
`
`‘1
`
`B.)
`
`I
`
`(DNOTU’T-FI
`
`' 090 IVIUI.
`Crnoo,fifin{>
`
`nn-U
`u.
`
`;
`L
`
`L_.j Yes
`
`_: “£0
`
`Upon the foregoing papers, it is ordered that the portion of defendant National Grid
`Generation, LLC d/b/a National Grid’s (“Nationai Grid") motion seeking contractuai
`indemnification from defendant O’Connor Constructors, Inc. f/k/a Thomas O’Connor & Co.,
`Inc. (“O’Connof’), and O’Connor’s cross-motion with respect to such claim, are decided in
`accordance with the attached decision and order.
`‘
`
`FORTHEFOLLOWINGREASONiSi:
`
`
`
`
`
`
`
` MOTION/CASEISRESPECTFULLYREFERREDTOJUSTICE
`
`W’—
`
`Dated: March 13 2015
`
`Martin Shuiman, J.S.C.
`
`E/NON-EINAL DISPOSITION
`Check one: B FINAL DISPOSITION
`Check if appropriate:
`[I DO NOT POST
`i7 REFERENCE
`
`

`

`FILED: NEW YORK COUNTY CLERK 06/19/2017 09:51 AM
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`NYSCEF DOC. NO. 414
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`INDEX NO. 190114/2013
`INDW3
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK: PART 1
`
`......................................................................-..X
`m RE: NEW YORK CITY
`ASBESTOS LlTlGATlON
`
`........................................................................-X
`RALPH P. NORTH,
`
`Plaintiff,
`
`-against-
`
`index No: 190114/13
`
`Decision and Order
`
`AlR & LlQUlD SYSTEMS CORPORATION, as
`Successor by Merger to BUFFALO PUMPS,
`NC, at al.,
`
`Defendants.
`..........................................................................X
`
`Among various relief, National Grid Generation, LLC, d/b/a National Grid
`
`(“National Grid”), formerly known as Long island Lighting Company (“LlLCO”) moved
`
`pursuant to CPLR 4404(a) for a judgment of dismissal notwithstanding the verdict, a
`
`new trial and/or remittitur of that portion of the verdict awarding plaintiff Ralph North
`(“‘North” or “Plaintiff") $3.5 million for future pain and suffering. in its January 21, 2015
`
`bench decision, this court denied each of these branches of National Grid’s motion‘, but
`
`reserved decision on that branch of its post-verdict Motion seeking contractual
`
`‘ This court concluded that the trial evidence supported the jury verdict finding: LlLCO
`exercised supervisory control over the work of all the contractors during the construction of the
`Northport Power Station ("Northport") which exposed Plaintiff to asbeStos dust (first theory of
`iiabilty); LlLCO had actual or constructive notice of, or created an unsafe premises condition
`which it negligently failed to remedy (second theory of liability); LlLCO acted with reckless
`disregard for Plaintiff’s safety; and LlLCO was 100% liable for Plaintiff contracting pleural
`mesothelioma. This court further determined that the future pain and suffering award was fair
`and did not deviate from what would be reasonable compensation (see Matter of New York City
`Abestos Litig. [Konstantin], 121 AD3d 230, 255 {15‘ Dept 2014)).
`
`'
`
`

`

`FILED: NEW YORK COUNTY CLERK 06/19/2017 09:51 AM
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`indemnification against defendant, O’Connor Constructors, inc, formerly known as
`
`Thomas O’Connor & Co, inc. (“O’Connor”)(”i\/iotion”). O’Connor cross-moved for an
`
`order denying National Grid’s Motion for summary judgment disguised as post-verdict
`
`relief. Both the Motion and CrosssMotion are consolidated for disposition.
`
`O’Connor’s Cross-Motion initially raises a number of procedural arguments for
`n:
`t O Connor
`
`denying ma --
`
`- =Grid’s w’icticn, viz” when Eiaintiii’s direct ciairn again
`
`0')
`
`settled, National Grid’s crosssciaim against O'Connor for indemnification was never
`
`severed and converted into a separate third—party action, rendering the Motion
`
`procedurally improper; the Motion is premature inter alia because National Grid has not
`
`suffered a loss by paying Plaintiff to satisfy the judgment against LlLCO; National Grid ‘
`
`never presented the issue of “conditionai” indemnification for the jury ‘c decide; and
`
`when O’Connor initially sought pre—trial summary judgment, National Grid never cross-
`
`moved for the relief it now seeks. National Grid counters that it afforded O'Connor
`
`ample and timely notice of its intent to seek indemnification so the latter could protect
`
`its interests. National Grid further argues that severance and conversion of its cross—
`
`claim to a third—party complaint were unwarranted as the main action was never
`
`dismissed but proceeded to trial ending with a jury verdict against same legally
`
`warranting its Motion for contractuai
`
`indemnification against O'Connor,
`
`O’Connor’s procedural arguments grounded on technicalities are unpersuasive
`
`as it was entirely appropriate to seek a post-verdict ruling as to its entitlement to
`
`contractual indemnification (see Yu v Greenway Mews Realty, LLC, 99 ADBd 619 [15‘
`
`Dept 2012]). Moreover, addressing the Motion now rather than later fosters judicial
`
`economy and reduces the litigation costs for all interested parties. Accordingly, National
`
`-2-
`
`

`

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`Grid’s otherwise timely and proper Motion will be addressed on its merits.
`
`National Grid’s Motion rests on identical indemnification provisions contained in
`
`LiLCO’s August 9, 1965 contract2 (Exhibit N to Motion) and its February 26, 1970
`
`contract3 (Exhibit 0 to Motion). Clause XX of'these contracts states, in relevant part
`
`("indemnity ciause”):
`
`The Contractor ii.e., O’Connor] hereby undertakes and agrees to
`indemnify and hold harmless the Company tie, LlLCO}, its officers,
`directors, employers, agents and servants, from and against all losses,
`damages, claims, liens and encumbrances, or any or all of them, arising
`out of or in any way connected with the work, and whatever made or
`incurred, including any and all liability imposed by law and/or contract
`and/or custom, upon the Company, its officers, directors, employers,
`agents, and sen/ants or any or all of them, whether or not it be claimed or
`proven that there was negiigenc—e or breach of statutory duty or both upon
`the part of the Company, its officers, directors, employers, agents and
`servants; and in any case, the Company shall have the right to demand
`that the Contractor shall undertake to defend any and all suits and to
`investigate and defend any and all claims whether justified or not,
`providing only that the claim or suit shalt be against the Company, its
`officers, directors, employers, agents and servants.
`Based on the foregoing, National Grid argues that LlLCO and O’Connor were
`
`sophisticated parties who conducted arm’s length negotiations, among other agreed—to
`terms. to include the indemnity clause that shifted the former’s iiabiiity for worker related
`injuries to the iatter even if LlLCO was found to be negligent. Citing to relevant case
`law, National Grid further argues that this broadly written, unambiguous indemnity
`
`2 The 1965 contract required O’Connor to furnish labor, material and equipment to erect
`and insulate the dust collectors, forced draft fans and breaching at Northport Unit 1 in
`
`3 The 1970 contract required O’Connor to erect the Northport Unit 3 steam generator
`(boiler) and related systems in accordance with LlLCO‘s specifications. This contract further
`gave LiLCO the right to direct O’Connor to erect a condenser and an electirostatic] precipitator
`
`at Unit 3 as well.
`
`-3-
`
`

`

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`clause is enforceable as a matter of law.
`
`As borne out by the triai record, Nationai Grid essentialiy contends that O'Connor
`
`was one of several major sub-contractors at Northport during the relevant periods North
`
`worked there and “[d]ue to its significant roie in the construction of Northport during the
`
`period of Plaintist exposure to asbestos [‘aris[ing] out of’ and ‘connected in any way
`
`with the work’.
`
`.
`
`. of O’Connor} as well as its contractual reiatiensnip with LtLCO,
`
`O’Connor is obligated to indemnify and hold National Grid harmless in this matter.”
`
`(bracketed matter added)(National Grid’s Memorandum of Law in Support of Motion at
`
`p 42);
`
`Ii
`
`O’Connor’s Cross-Motion raises the following points:
`
`The indemnity clause expressly limits G’Connor’s potential liabiiity for its own
`work“ at Northport and is not broadly worded to obligate O‘Connor “to indemnify
`National Grid for losses or damages incurred by the work of other contractors or
`even LiLCO’s own negligence or breach of statutory duty. .
`(Sapon Aft to
`Cross-Motion at 1i28);
`
`There is neither factual support for National Grid to seek indemnity against
`O’Connor and full reimbursement for all the work performed to complete
`Northport, nor evidence produced at trial that O’Connor’s work required under
`the 1965 and 1970 contracts was the soie cause of Plaintiff’s asbestos-related
`injuries (see generally, Sapon Aft to Cross—Motion at 111129-35);
`
`in opposing O’Connor’s eariier motion for summary judgment seeking dismissal
`of North's claim and National Grid's cross—claim against it, National Grid’s
`counsel conceded there was “an issue of fact as to whether O’Connor owes
`National Grid contractual indemnity in this case. .
`(O’Malley Opp Aft at Ti 5; see
`also, Exhibit E to Cross-Motion) presumably because Nationai Grid, as a
`successor to LlLCO, had no direct privity with O’Connor under the 1965 and
`1970 contracts;
`
`
`
`4 in Clause ll of these contracts (i.e., the Definitions provision), “[t]he word ‘Work’ shail
`mean all the matters and things herein agreed to be furnished or done by or on the part of the
`Contractor including, but not limited to, iabor, services, materials and machinery."
`
`.4.
`
`

`

`FILED: NEW YORK COUNTY CLERK 06/19/2017 09:51 AM
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`I
`
`i
`
`I
`
`While National Grid admitted in open court that it bears successor liability for
`' LlLCO’s actions (Exhibit A to Cross—Motion), nonetheless, it has not proven it is a
`successor-in-interest to automaticaily benefit from the indemnity clause (i.e.,
`references to the “Company, its officers, directors, agents and employees” in this
`’1
`fl
`contract provision does not include “successors , assigns”, etc);
`
`Because LlLCO “remains an ‘aotive’ Domestic Business Corporation and has not
`been dissolved, according to the office of the New York Secretary of State"
`(Sapon Aff to Cross-Motion at fi24; see also, Exhibit B thereto), National Grid
`offers no proof as to the “intent” of the parties to these decades old contracts to
`impute to any successor entity LiLCO’s contractuai indemnity rights against
`OiConnor; and
`
`National Grid never tendered its defense to O’Connor, abandoned a vita!
`defense strategy (i.e.,'declined to pursue a ore—trial summary judgment motion)
`and after obtaining an adverse jury verdict, now prefers to baselessly shift its
`iiability to O’Connor.
`
`in opposition to the Cross-Motion, Natlcnai Grid ciaims it never forfeited its right
`
`to contractual indemnification and the indemnity ciause obligates O’Connor “to
`
`indemnify LlLCO and its successors for all claims which were ‘in any way connected
`
`with the work .
`
`.
`
`. including any and all liability imposed by law’ .
`
`.
`
`(National Grid Repiy
`
`Memorandum of Law at p 7); pursuant to Clause XXll of these contracts (“This contract
`
`shall be binding upon the parties hereto and their heirs, executors, administrators,
`
`successors and assigns. .
`
`as Exhibits N and O to Motion, supra) and other
`
`documentary evidence produced at triai, National Grid has established it is a successor-
`
`in—interest to contractually benefit from the indemnity clause; National Grid never
`
`abandoned its motion for summary judgment as it was simply marked off the court’s
`
`motion calendar with leave to reinstate same by letter and never had to tender its
`
`defense to O’Connor; and as the indemnity clause makes clear, the former’s
`
`entitlement to contractual indemnification from O'Connor including inter alia a judgment
`
`against it, attorneys' fees and costs is not dependent on a finding of fault.
`
`-5-
`
`

`

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`Among other points raised in its Cross-Motion, O’Connor's reply summarily
`
`reiterates that because National Grid never pursued its cross—claim against O’Connor at
`
`trial and merely sought to have the jury apportion liability for the former’s negligence, its
`
`unambiguous contractual definition of its “work” limits any claimed indemnity
`
`obligation, should the court perceive the indemnity clause to be ambiguous, then the
`
`ambiguity triggered issues of fact which should have been disposed of during the jury
`
`trial. Finally, O’Connor points out that National Grid’s reference to Clause XXll,
`
`not proof that these contracts
`denominated the “Contractor Not to Assign” provision,
`have been legally assigned to the latter to benefit from the indemnity clause 40 years
`
`3
`
`after the Northport work was completed.
`
`Discussion
`
`As noted, supra, O’Connor‘s Cross-Motion repeatedly questions National Grid’s
`
`standing as LILCO’s successor—in-interest
`
`to enforce the indemnity clause contained in
`
`the LiLCOO’Connor contracts. After the post-trial Motion and Cross-Motion became
`
`sub judice and at this court’s direction, National Grid supplemented the record and
`
`provided a more complete package of documentation with a supporting affidavit from
`
`National Grid's senior litigation counsel (see Rossetti Supp Aff to Motion and the
`
`Merger, Power Supply and Assignment Agreements as Exhibits A-C thereto) it believes
`
`l
`
`corroborates LiLCO’s assignment to National Grid (previously knovvn as BL Generation
`
`LLC; see also, Exhibits D-G to Rosetti Supp Aff to Motion) of all of itsrights, obligations
`
`and interests including its ownership of Northport.
`
`

`

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`in addition to reiterating some of its arguments raised in its Cross—Motion, supra,
`
`O’Conncr’s sur—reply utilizes this barely opened window of opportunity to continue to
`
`claim that the paper trail does not prove LlLCO expressly assigned its contractual
`
`rights to National Grid; North’s 1997 personal injury claim against LlLCQ was obviously
`
`not pending as of “the Closing Date of the Merger Agreement dated June 26, 1997 .
`
`.
`
`{Sapon SunReply Aft at {l 8} and. theref‘re, National Grid’s claim tor indemnity under
`
`the LILCO-O’Connor contracts was not part of the assets LlLCO transferred pursuant
`
`thereto; and even though these contracts pre—date the enactment of GGL §5-322.1,5
`
`public policy compels the court to retroactively apply this statute to prevent National
`
`Grid from being indemnified for North’s asbestos-related injuries a jury- has determined
`
`was solely caused by LlLCG’s negligence.
`
`Despite O’Connor taking issue with National Grid’s standing to seek
`
`indemnification, this court finds record support entitling National Grid to initiate and
`
`prosecute its cross claim against O’Connor for indemnification as LlLCO’s successor-
`
`in-interest. That being said, the substantive issue of whether National Grid has
`
`contractual indemnity rights against O'Connor, a settling co-defendant, for the post—
`
`verdict judgment North was awarded in the sum of $6,731,294.04 against National Grid
`
`is not a simple one, especially when the jury found National Grid to be 100% liable for
`
`5 “An indemnification agreement [executed after 1975] is void as against public policy
`pursuant to GOL 5-3221 it it contains language that indemnifies an owner or general contractor
`for harm caused for their own negligence The purpose of GOL 5-3221 is to prevent
`subcontractors from assuming liability to the negligence of the owner or contractor pursuant to
`the contract, Brown v. Two Exch. Plaza Partners, 76 N.Y.2d 172, 558 N.E.2d 430, 556 N.Y.S.
`2d 991 (1999) .
`. .“(bracketed matter added)(see Matter of 91St St. Crane Collapse Litig.
`(Graves), 2014 Misc. LEXlS 1108, 2014 NY Slip Op 30634 (Sup Ct NY Co Mendez, J).
`
`-7-
`
`

`

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`Plaintiff's asbestos related injuries.6 The historic rule was that “contracts will not be
`
`construed to indemnify a person against his own negligence unless such intention is
`
`expressed in unequivocal terms’ (Thompson—Starred Co. v Otis Ei. Co, 217 NY 36, 41,
`
`2 NE2d 35 [19361, or if ‘that appears to have been the unmistakable intent of the
`
`parties“ (Kur‘ir v Port Chester Hons. item, ‘28 NY2d 450, 456, 223 NE2d 25, 276 NYS
`
`612 [1966])”. Matter of New York City Asbestos Litig. (Croteau) V AC. & 8., 41 AD3d
`
`299, 301 (15‘ Dept 2007). That being noted, the Croteau Court went on to state that the
`
`Court of Appeals has also held that:
`
`[B]road indemnification clauses purporting to apply to “any and all liability"
`shouid be construed as meaning what they say, by allowing them to cover
`“any and all" liability on the part of the person being indemnified (see
`Levine v Shell Oil Co, 28 NY2d 205, 211, 269 NE2d 799, 321 NYSZd 81
`[1971]).
`[Moreover,] [ijndemnification provisions have been enforced,
`despite negligence on the part of the party being indemnified, where the
`provision stated that they applied to “any and all claims, suits, loss, cost
`and liability” (id. at 210) or “any and all damage or injury of any kind"
`(Margo/in v New York Life Ins. Co, 32 NY2d 149, 153, 297 NE2d 80, 344
`NYSZd 336 [1973]), although they made no mention of negligence on the
`part of the party being indemnified (bracketed matter added). Id.
`
`The relevant, operative language in the indemnity clause in the LlLCO-O’Connor
`
`contracts unambiguously requires O’Connor to indemnify LlLCO “from and against all
`
`iosses, damages, claims, liens and encumbrances, or any or all of them, arising out of
`
`or in any way connected with the work, and whatever made or incurred, including any
`
`6 As noted earlier, consistent with its weight of the evidence analysis, the jury reached
`this conclusion despite finding that Plaintiff was exposed to asbestos made, sold, distributed, or
`used in connection with O’Connor’s products or equipment, and'that O’Connor failed to
`exercise reasonable care in the use and/or manipulation of asbestos containing products to
`which Plaintiff was exposed (see Jury Verdict Sheet interrogatories 4a and 4d as Exhibit A to
`Motion). in other words, based on all of the trial record evidence, the jury determined that
`O’Connor was negligent, however, its negligence was not a Substantial factor in causing
`Plaintiff‘s asbestos-related mesotheiioma (see Jury Verdict Sheet interrogatory 4e, id).
`
`Q
`
`

`

`FILED: NEW YORK COUNTY CLERK 06/19/2017 09:51 AM
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`and all liability imposed by law and/or contract and/or custom, upon .
`
`.
`
`. [LlLCO]
`
`whether or not it be claimed or proven that there was negligence or breach of statutory
`
`duty or both upon the part of .
`
`.
`
`. [LILCO].” (bracketed matter and emphasis added).
`
`This court finds the indemnity clause “evidences a clear intent by the parties
`
`for {O’Connor} to assume all liability arising out of [its] work at [Northport]. .
`
`(emphasis and bracketed matter added), Vey v Port Auth. of New York & New Jersey,
`
`54 NY2d 221, 226 (1981).
`
`O’Connor, relying on the contractual definition of “work”, attempts to suggest that
`
`its obligation to indemnify National Grid would only occur if North’s asbestos related
`
`injuries were directly due to its own negligent acts or omissions. However, the indemnity
`
`clause does not contain any language remotely supporting this construction. Nor is
`
`there any language in the indemnity clause of the LlLCO-O’Connor contracts which
`
`would expressly vitiate O’Connor’ s legal duty to indemnify NationalGrid for North’s
`
`work-related, asbestos exposure injuries solely caused by LlLCO’s negligence (see
`
`Great Northern Ins. Co. v Interior Construct. Corp, 7 NY3d 412, 417 [2006]). Finally,
`O’Connor’s public policy argument to have the court retroactively apply GOL §5~322l1
`
`to the LlLCO-O’Connor contracts is also unavailing. Matter of New York City Asbestos
`
`Litig. (Croteau) v AC. & s, 41 mm: at 301.
`
`Based upon well established appellate precedent upholding contractual
`
`indemnification provisions comparable, it not identical to the indemnity clause in the
`
`LlLCO—O’Connor contracts, National Grid, as LlLCO’s successor—in—interest, is entitled
`
`

`

`FILED: NEW YORK COUNTY CLERK 06/19/2017 09:51 AM
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`to fuii indemnification from O’Connor for the underlying judgment duly entered on
`
`January 28, 2015.
`
`As part of its indemnification remedies, National Grid also seeks counsei fees
`
`incurred in defending LiLC-Q against North’s product iiaoiiity ciaim. However, as aptiy
`
`noted in Gotham Partners, LP v High River Ltd. Partnership, 76 AD3d 203, 209 (15!
`
`Dept 20%“), Nationai Grid cannot tease out a contractuai right to be reimbursed its
`
`attorney’s fees from the indemnity ciause’s reference to “aii losses, damages, ciaims,
`
`iiens and encumbrances." This language is too broadiy worded and simpiy does not
`pass the Hooper test ‘see Hooper Assocs, v AGS Computers, 74 NY2d 487 [19891, viz,
`unmistakably oiear ianguage expressiy providing for indemnification for attorneys’ fees,
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`if expended for LiLCO’s defense). The branch of Nationai Grid’s iv‘iotion seeking
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`reimbursement for its attorneys’ fees is denied.
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`Based on the foregoing, National Grid’s Motion is granted to the extent provided
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`and O’Connor’s CrossoMotion is denied in its entirety.
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`This constitutes this court’s Decision and Order. Courtesy copies of thisDecision
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`and Order have been furnished to counsei for the parties.
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`DATED: New York, New York
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`March 13, 2015 W
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`HON. MARTIN SHULMAN, JSC
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`-10-
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`