Appellate Court Declines to Require FHMS’s Client to Indemnify General Contractor for a $900,000 Verdict

Quinn M. McCusker of the New Jersey office of Fowler, Hirtzel, McNulty & Spaulding secured an Appellate Division decision confirming the trial court’s Order granting Summary Judgment on behalf of the firm’s client, a subcontractor and the injured Plaintiff’s employer. The Plaintiff sustained significant injuries on a work site after falling into an open hatch.

Due to the New Jersey Workers Compensation Act, the Plaintiff was barred from suing the client (his employer) and named the general contractor as the only direct Defendant. The general contractor, however, named the client as a third-party Defendant and sought recovery through contractual indemnification pursuant to an indemnification clause contained in its contract with the client. The trial court granted the client’s motion for summary judgment finding the indemnification provision improperly vague which prevented the general contractor from being indemnified for its own negligence. After the trial court granted the client’s motion for summary judgment and dismissed the client from the suit, the Plaintiff proceeded to trial against the general contractor. At trial, the Plaintiff obtained a verdict of 100% fault against the general contractor with a damages award of $909,547.00.

Following the verdict, the general contractor appealed the summary judgment order arguing, inter alia, that the trial court improperly determined the indemnification clause was vague. On August 21, 2025, the Appellate Division entered its opinion in Russo v. O.A. Peterson Constr. Co., 2025 N.J. Super. Unpub. LEXIS 1584 (App. Div. Aug. 21, 2025), siding with McCusker’s client on all issues. Most significantly, the Appellate Division determined the commonly used indemnification language contained in the general contractor’s contract (“regardless of whether or not such claim, damaged, loss or expense is caused in part by a party Indemnified hereunder”) was not specific enough to require indemnification for the general contractor’s own negligence. Specifically, the Appellate Division determined this provision was subject to at least two reasonable interpretations and, when strictly construed against the general contractor as the drafting party, was improperly vague.