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A Queens jury this week drew the fine line Sim and Dua asked of them – even though the jury determined our client was negligent, it also accepted our arguments that the negligence was not a substantial cause of plaintiff’s injuries. The result frustrated the subcontractor’s efforts to invalidate the governing indemnity commitment, positioning our client to recover more than $5 million paid to fund a settlement of an injured worker’s lawsuit, monies that were advanced after the subcontractor refused to contribute what was necessary. Trial proceeded on the construction manager’s reimbursement claim, with a win for Sim and Dua and for the client, which may now enforce the risk transfer for the full amount of the settlement funds and expenses. Prior to verdict, the highest settlement offer was a mere $500,000.
The case arose from a construction-site accident in which an employee of a subcontractor had been injured when the Baker scaffold he was working on collapsed. The subcontractor’s excess insurer declined to contribute to the settlement, even though our client was an additional insured, and even though the employer’s primary liability policy offered its full limit towards the $7 million settlement with the worker. The construction manager’s third-party claim for contractual indemnification therefore proceeded to a jury trial.
The Contractual Indemnification Dispute
At trial, there was little dispute that the accident arose out of the subcontractor’s work. That connection triggered the subcontractor’s agreement to accept the risk of loss in the first instance, but the subcontractor argued that our client was actively negligent and the contractual obligation was thus unenforceable. The trial team addressed that with a two-prong approach. First, the team argued that the construction manager had not been negligent. Second, Sim argued that even if the jury believed there was negligence, they nevertheless had to consider whether the negligence was a substantial factor in causing the accident.
Focusing the Jury on Causation
The evidence presented at trial included the injured worker’s testimony that he did not know what had caused the scaffold to fail. He had also testified that the scaffold appeared to be in good working condition when he previously used it. The trial team deployed that testimony to argue that there was no evidence of an observable defect that the construction manager’s Superintendent should have discovered during his regular site inspections. Even if the jury concluded that the construction manager could have done more from a general safety standpoint, Sim argued, that conclusion did not establish that any act or omission by the construction manager caused the scaffold to collapse.
The jury ultimately understood the distinction and made that exact finding: although the construction manager was negligent, that negligence was not a substantial factor in causing the accident.
Effective Use of Trial Demonstratives
The team’s presentation included a summation demonstrative prepared by associate Dua Tahir. The demonstrative organized the arguments into concise points and paired them with supporting excerpts from the governing contracts. Following the verdict, jurors identified the demonstrative as particularly helpful in evaluating the contractual language and in understanding the distinction between a general finding of negligence and the separate requirement of causation, and that distinction made all the difference for enforceability of the clause.
Sim and Dua’s hot streak (three in a row) involved three distinct areas of law: product liability, motor vehicle liability, and contractual indemnification. They were supported by Jasmine McCoy, Denise Martinez and Lester Ramlal.
We are grateful to practice with talented lawyers like Sim and Dua, who roll up their sleeves and do the work, and who effectively advocate for clients and create solutions.
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