LEON HERSON & OTHERS [Note 1] vs. NEW BOSTON GARDEN CORPORATION & OTHERS. [Note 2]

LENK, J. In 1987, appellant Massachusetts Electric Construction Company, Inc. (Mass Electric), installed switchgear in an electrical vault at the Boston Garden pursuant to a written subcontract with the general contractor, Bechtel Civil, Inc. (Bechtel). The subcontract contained an indemnification provision in favor of Bechtel and the owner, New Boston Garden Corporation (NBG).

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In 1990, Leon Herson and Dennis Worobey, two employees of another electrical subcontractor, F.H. Newton Electrical Co., Inc. (Newton), were severely injured (Worobey later died) while working in the vault on high voltage equipment during another phase of the project at the Boston Garden. Herson and his wife and Worobey's estate each brought a lawsuit against, among others, NBG, Bechtel, and Mass Electric. NBG and Bechtel in turn asserted indemnification and contribution claims against, among others, Mass Electric. All the defendants settled Worobey's claims before trial; all the defendants except Mass Electric settled Herson's claims before trial. [Note 3] The Herson lawsuit was tried to a jury which found Mass Electric causally negligent, assigning it 72.5 percent of the liability and Herson the remainder.

Mass Electric does not appeal from the jury verdict for Herson. Rather, it appeals from the judgment entered for NBG [Note 4] on its indemnification claims, requiring Mass Electric to indemnify NBG fully for payments it made to settle with Herson and Worobey. As grounds, Mass Electric contends that the Superior Court judge erred: (1) in requiring Mass Electric to pay full indemnification to NBG; (2) in refusing to submit to the jury several special interrogatories; (3) in excluding certain evidence; and (4) in refusing to extinguish or reduce the amount of NBG's judgment for indemnification as a result of NBG's settlement with a coindemnitor. For the reasons discussed below, we affirm.

1. The indemnification agreement. The indemnification agreement in the subcontract between Mass Electric and Bechtel states:

"Subcontractor [Mass Electric] hereby releases and shall indemnify, defend and hold harmless Owner [NBG] and Contractor [Bechtel] and their subsidiaries and affiliates and the officers, agents, employees, successors and assigns and authorized representatives of all of the foregoing from and against any and all suits, actions, legal or

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administrative proceedings, claims, demands, damages, liabilities, interest, attorney's fees, costs and expenses of whatsoever kind or nature including those arising out of injury or death of Subcontractor's employees whether arising before or after completion of the work hereunder and in any manner directly or indirectly caused, occasioned or contributed to in whole or in part, or claimed to be caused, occasioned or contributed to in whole or in part, by reason of any act, omission, fault or negligence whether active or passive of Subcontractor, its subcontractors or of anyone acting under its direction or control or on its behalf in connection with or incidental to the performance of this contract. Subcontractor's aforesaid release, indemnity and hold harmless obligations, or portions or applications thereof, shall apply even in the event of the fault or negligence, whether active or passive, or strict liability of the parties released, indemnified or held harmless to [the] fullest extent permitted by law, but in no event shall they apply to liability caused by the sole negligence or willful misconduct of the parties released, indemnified or held harmless."

Mass Electric contends that the trial judge erroneously applied this provision because (a) it is grossly unfair to interpret it to apply to NBG's independent liability for an accident occurring three years after Mass Electric performed the construction work that was the subject of the subcontract; (b) to the extent the provision applies at all, it applies only in proportion to the percentage of Mass Electric's causal negligence measured against NBG's causal negligence; and (c) the provision is void ab initio since it does not limit Mass Electric's indemnification responsibility only ta accidents caused by Mass Electric.

a. Unfairness. Indemnification provisions are to be read without any bias for the indemnitor or against the indemnitee. They are to be interpreted like any other contract, with attention to language, background, and purpose. Speers v. H.P. Hood, Inc., 22 Mass. App. Ct. 598, 600 (1986). Mass Electric's assertion that it was unfair for the judge to declare the indemnification provision applicable rests on its view that temporal factors, NBG's alleged independent subsequent negligence, and the insurance provisions of the subcontract

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agreement must all be taken into consideration in construing and ascertaining the applicability of the indemnification provision. The plain language of the unambiguous indemnification provision here defeats Mass Electric's thesis.

Notwithstanding the fact that Herson's injury occurred well after Mass Electric had left the job site, no temporal limits upon Mass Electric's indemnification obligation appear in the subcontract. That agreement states that Mass Electric "shall indemnify, defend and hold harmless [NBG] . . . from and against any and all suits, actions . . . damages, liabilities . . . whether arising before or after completion of the work hereunder" (emphasis added). The jury found Mass Electric causally negligent for the work it performed in 1987 which injured Herson in 1990. The language of the indemnification clause encompasses just such temporal lags and there is nothing unfair in this regard about holding Mass Electric to its agreement. [Note 5]

b. Proportional liability. The jury made no finding regarding NBG's alleged causal negligence. Nonetheless, Mass Electric dwells upon what it contends was sufficient evidence at trial establishing NBG's independent negligence, [Note 6] which occurred long after Mass Electric completed work on the 1987 project phase. Mass Electric argues that a reasonable construction of the indemnification agreement would not permit NBG to be indemnified for such negligence. Instead, at most, NBG should be indemnified only for NBG's indivisible, concurrent liability arising out of Mass Electric's performance of work.

Once again, Mass Electric is thwarted by the plain language of its indemnity undertaking, which contains no limitation upon Mass Electric's obligations even where there is separate and intervening negligence by NBG. So long as the injury was not caused by NBG's "sole negligence or willful misconduct," the contract requires indemnification even "in

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the event of the fault or negligence" of NBG. The jury's unappealed verdict establishes that Herson's injuries were not caused by NBG's "sole negligence." Further, the agreement does not in any way qualify Mass Electric's indemnity obligation by limiting it to instances where NBG's negligence is indivisible and concurrent with that of Mass Electric. Similarly, Mass Electric's contention that the insurance provisions of the subcontract limit its indemnity obligations is unavailing. [Note 7] There is no reason to think that this provision

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functions as a temporal constraint upon the application of the indemnity obligation rather than as an additional means of providing financial protection for NBG and Bechtel. The last paragraph of the insurance clause says as much.

c. General Laws c. 149, s. 29C. We turn to Mass Electric's argument that even if the language of the indemnity agreement would otherwise require full indemnification, G. L. c. 149, s. 29C, forbids this result. [Note 8] The statute, Mass Electric contends, either voids the indemnity agreement ab initio because it does not limit Mass Electric's indemnification responsibility solely to accidents caused by Mass Electric or because the statute imposes the limitation that there be indemnification only for Mass Electric's proportional causal negligence.

General Laws c. 149, s. 29C, as amended by St. 1986, c. 557, s. 135, states in relevant part:

"Any provision for or in connection with a contract for construction . . . which requires a subcontractor to indemnify any party for injury to persons or damage to property not caused by the subcontractor or its employees, agents or subcontractors, shall be void." Mass Electric argues (1) that, under the subject contractual indemnity provision, the duty to indemnify is triggered not

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when a finding of Mass Electric's fault is made but whenever it is "claimed" that Mass Electric is responsible for an injury, and (2) that indemnification is required even when Mass Electric is not causally liable, where its "act" in some manner "occasioned" a plaintiff's injuries. Accordingly, Mass Electric reasons, the provision is void ab initio under s. 29C.

In determining the validity of an indemnity provision under s. 29C, it is upon the language of the indemnity clause that we focus rather than upon a finding of the facts of the particular accident and an assessment of fault of the parties. Harnois v. Quannapowitt Dev., Inc., 35 Mass. App. Ct. 286, 288 (1993); Callahan v. A.J. Welch Equip. Corp., 36 Mass. App. Ct. 608, 611 (1994). This furthers the loss shifting function of the statute and clarifies where the burden of acquiring insurance lies. Harnois, supra. Mass Electric argues that the language of the clause impermissibly allows the duty to indemnify to be triggered, not at a time after it has been proven that Mass Electric in fact caused an injury, but instead whenever merely a claim is made that Mass Electric did so. To the extent that Mass Electric suggests that s. 29C forbids determinations to be made prior to trial as to the validity and enforceability of an indemnity clause -- thereby triggering the subcontractor's duty to indemnify -- this suggestion has no merit for the reasons already stated. Nothing in the subject indemnity clause requires that indemnity payments be tendered unless and until it has been proven that Mass Electric caused the injury.

Mass Electric also argues, however, that insofar as the subject clause contains duty to defend language (arguably requiring immediate payment of the indemnitee's defense costs) capable of being triggered solely by virtue of the assertion of a claim against the subcontractor-indemnitor whose causal fault, if any, for the injury giving rise to the claim has not yet been determined, the indemnity clause as a whole offends s. 29C. Assumptions critical to this contention are that the duty to defend is encompassed within the duty to indemnify or that, if the two are separate duties, the duty to defend is nonetheless within the protective ambit of s. 29C.

The duty to defend in the subject clause is a duty independent of and broader than the duty to indemnify. See, e.g., Boston Symphony Orchestra, Inc. v. Commercial Union Ins. Co., 406 Mass. 7, 10 (1989); Urban Inv. & Dev.

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Co. v. Turner Constr. Co., 35 Mass. App. Ct. 100, 107-108 (1993). [Note 9] Section 29C makes no reference to "duty to defend" undertakings by subcontractors, but is limited to subcontract provisions which require a subcontractor "to indemnify." Had the Legislature wished to encompass the often utilized "duty to defend" provisions within the protective ambit of s. 29C, it presumably would have said so expressly.

We interpret the language of the indemnity clause, taken in its entirety, as limiting Mass Electric's indemnity obligation to cases in which there is a causal connection between Mass Electric's work and the injury. The language of the clause thereby avoids the nullifying effect of s. 29C, notwithstanding Mass Electric's attempt to differentiate the statutory language of "caused by," from the indemnity clause's language "occasioned . . . by reason of any act, omission, fault or negligence whether active or passive of [Mass Electric]." There is no meaningful distinction between the two since the disputed language in context is the functional equivalent of "caused by." See M. DeMatteo Constr. Co. v. A.C. Dellovade, inc., 39 Mass. App. Ct. 1, 3-4 (1995). Even if this were not so, NBG's contractual indemnity obligations "shall apply . . . to [the] fullest extent permitted by law, but in no event shall they apply to liability caused by the sole negligence or willful misconduct of the parties . . . indemnified." This limitation also permits the conclusion that the indemnity clause is not void under s. 29C. See Callahan, 36 Mass. App. Ct. at 611.

Finally, Mass Electric urges, without citation to any appellate authority, that s. 29C proscribes an interpretation of the subcontractor's indemnity clause which requires it to indemnify NBG for costs arising out of NBG's own distinct negligence which Mass Electric did not cause. Mass Electric's position is that s. 29C requires apportionment, a position

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which we reject. Section 29C only voids contractual indemnity provisions which require indemnification for injuries not caused by the subcontractor. General contractors and owners are prohibited by s. 29C from receiving indemnity for their sole causal negligence, but s. 29C does not proscribe full indemnification when the conduct of the subcontractor is only a partial cause of the injury. See Collins v. Kiewit Constr. Co., post (1996). Otherwise put, s. 29C does not prohibit contractual indemnity arrangements whereby the subcontractor agrees to assume indemnity obligations for the entire liability when both the subcontractor and the general contractor or owner are causally negligent. See Harnois, 35 Mass. App. Ct. at 288, and Callahan, 36 Mass. App. Ct. at 611-613. Had the Legislature intended thus to abrogate the common law, which long permitted by written contract full indemnification of an indemnitee even where the indemnitee was negligent, see, e.g., Kelly v. Dimeo, Inc., 31 Mass. App. Ct. 626, 629-630 (1991), it would have done so explicitly.

2. Special interrogatories. Mass Electric complains of the trial judge's refusal to submit to the jury interrogatories (a) to determine whether NBG committed wilful misconduct by failing to request a shutdown of electricity by Boston Edison to the work site before allowing Herson to work on the electrical equipment and (b) to determine Mass Electric's percentage of negligence relative to parties other than the injured plaintiff Herson. There was no error.

After the jury had retired and reported its answer to one of the special questions, Mass Electric belatedly requested that the trial judge submit a new special question to the jury regarding NBG's alleged "wilful misconduct". As Mass Electric failed to raise the issue before the jury retired, it waived its right to have the question submitted to the jury, and its right to raise the issue on appeal. Mass.R.Civ.P. 49(a), 365 Mass. 813 (1974); Hawco v. Massachusetts Bay Transp. Authy., 398 Mass. 1006 (1986). Mass.R.Civ. P. 49(a) provides:

"If in [submitting special questions to the jury] the court omits any issue of fact raised by the pleadings or by the evidence, each party waives his right to a trial by jury of the issue so omitted unless before the jury retires he demands its submission to the jury."

The trial judge had given counsel for all parties ample op-

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portunity to make requests for special questions both before the jury was charged, and again after the charge, but before the jury retired. There is therefore no excuse for Mass Electric's failure to propose the additional special question in a timely fashion.

Mass Electric argues that, because "wilful misconduct" by NBG was a "valid theory of defense that is supported by sufficient evidence," the trial judge abused his discretion by refusing to submit the special jury question. Mass.R.Civ.P. 49(a) provides for the situation where an issue is omitted by the trial judge, and no party objects in a timely fashion:

"As to an issue omitted without such [timely] demand [for a special jury question], the court may make a finding . . . ."

In the case at bar, the trial judge did make such a finding, that "on all balance there was no evidence of willful misconduct." An appellate court is to leave such a finding undisturbed unless it concludes that it is "clearly erroneous". See Hawco, supra; Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Freyermuth v. Lutfy, 376 Mass. 612, 615 (1978) (citations omitted).

The concept of "wilful misconduct" is elucidated in Manning v. Nobile, 411 Mass. 382, 387 (1991), as follows:

"'[W]ilful, wanton, or reckless' conduct [is] 'intentional conduct, by way either of commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another.'"

Ibid., quoting from Commonwealth v. Catalina, 407 Mass. 779, 789 (1990), quoting from Commonwealth v. Welansky, 316 Mass. 383, 399 (1944). There was ample support in the evidence for the trial judge's finding regarding wilful misconduct by NBG.

As to the judge's refusal to ask the jury to assess the relative causal negligence of the parties, we discern neither error

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nor abuse of discretion. In view of our determination that the valid indemnification clause in the subcontract requires Mass Electric to indemnify NBG fully irrespective of whether NBG also was causally negligent, the omission of this interrogatory (a matter left in any event, within the judge's broad discretion, see Everett v. Bucky Warren, Inc., 376 Mass. 280, 291 [1978]), was without consequence to the judgment from which Mass Electric appeals.

3. Excluded evidence. Mass Electric claims that the trial judge erred in excluding (a) the testimony of its employee James McCellan regarding a vicarious admission made to him by an NBG employee; (b) the testimony of its employee Dennis DaRu to the effect that he would not have signed the subcontract had he understood the indemnification provision to require Mass Electric to indemnify for anything other than liabilities arising out of Mass Electric's work on the subcontract; and (c) Occupational Safety and Health Administration (OSHA) citations received by NBG and other entities in connection with their role in the 1990 accident in which Herson was injured. We discern no error.

(a) McCellan testimony. Mass Electric proposed to introduce testimony from James McCellan, a Mass Electric electrician, concerning a conversation he had had with then Boston Garden electrician John Vacca about the accident. In the conversation over lunch the day after the accident, McCellan asked Vacca why there had been no Boston Edison shutdown on the night of the accident. At a voir dire outside the hearing of the jury, McCellan testified that Vacca responded, "[T]hey didn't want to go through the fuck-around with Edison." Vacca had already testified before the jury that he did not know McCellan by name, and had never had lunch with him on any occasion. At voir dire, McCellan testified that he had lunch with Vacca virtually every day while they were both working at the Garden.

McCellan's testimony could be admitted as nonhearsay if Vacca's statement met the criteria of a "vicarious admission" as found in proposed Mass.R.Evid. 801(d)(2)(D), and adopted by the court in Ruszcyk v. Secretary of Pub. Safety, 401 Mass. 418, 420 (1988). Proposed Rule 801(d)(2)(D) provides:

"A statement is not hearsay if . . . the statement is offered against a party and is . . . a statement by his agent

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or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship."

Ruszcyk prescribes a two-part inquiry for determining the admissibility of a vicarious admission. First, was the declarant (here, Vacca) authorized to act on the matters about which he spoke? Id. at 420, n.3. If yes, then the trial judge must further consider whether the probative value of the evidence is substantially outweighed by its potential for unfair prejudice, under proposed Mass.R.Evid. 403. Id. at 422. The Ruszcyk court also prescribed the factors to consider in making the Rule 403 determination:

"[T]he credibility of the witness [here, McCellan]; the proponent's need for the evidence, e.g., whether the declarant [Vacca] is available to testify; and the reliability of the evidence offered, including consideration of whether the statement was made on firsthand knowledge and of any other circumstances bearing on the credibility of the declarant."

Id. at 422-23.

The trial judge in the case at bar followed Ruszcyk's prescription closely, and refused to admit the testimony on the grounds that the issue of an Edison shutdown was not within Vacca's scope of employment, and that, even if it were, the testimony would be more prejudicial than probative. NBG's assertion that Vacca had no responsibility for or role in arranging Boston Edison shutdowns generally, nor in the decision about whether there would be an Edison shutdown on the night of the accident is supported by the evidence at trial. The trial judge was therefore correct in barring McCellan's testimony, and need not have considered whether it would be more prejudicial than probative.

(b) DaRu testimony. Dennis DaRu executed the subcontract on Mass Electric's behalf. His proffered testimony was to the effect that he would not have signed the subcontract had he understood it to apply to liability arising from an injury occurring after Mass Electric, the third or fourth largest electrical contractor in the United States, completed its work. The judge was correct to exclude this parol evidence regarding

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DaRu's personal understanding of the subcontract because it was irrelevant. The subcontract's indemnity provision is unambiguous and the parties' rights and obligations are to be determined from contract language itself, not from extrinsic evidence regarding its meaning or from the parties' unexpressed intent. See Mass. Mun. Wholesale Elec. Co. v. Danvers, 411 Mass. 39, 48 (1991); Amoco Oil Co. v. Buckley Heating, Inc., 22 Mass. App. Ct. 973, 974 (1986).

(c) Federal Office of Safety and Health Administration (OSHA) citations. Three citations from OSHA were issued to NBG and two electrical subcontractors (not Mass Electric) after Herson's 1990 accident. The beginning "inspection date" is the day after the accident for two of the citations, and five days after the accident for the third citation, suggesting that the inspections were occasioned by the accident. The citations also gave opinions as to the cause of the 1990 accident and the causal role of those cited by OSHA. Mass Electric claims that it was error to exclude these OSHA citations when they are relevant, important, and trustworthy pieces of evidence proving the primary fact that pertinent OSHA regulations had been violated on the night of the accident. Mass Electric contends that they fall within a clear exception to the hearsay rule. We disagree.

Neither Massachusetts common law nor proposed Mass.R.Evid. 803(8)(C), allowing a hearsay exception for public documents, permits admission of "evaluative reports" or opinions or conclusions in government reports. This is acknowledged to be contrary to Federal practice. Rice v. James Hanrahan & Sons, 20 Mass. App. Ct. 701, 706-707 n.11 (1985). Thus, even though the language of the proposed rule is identical to that in the Federal rule, Massachusetts has declined to follow the more liberal Federal interpretation embraced by the U.S. Supreme Court in Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 162 (1988), which held that, "factually based conclusions or opinions are not on that account excluded from the scope of Rule 803(8)(C)."

The standard for determining whether a public document is admissible was articulated as follows in Commonwealth v. Slavski, 245 Mass. 405, 417 (1923):

"[A] record of a primary fact, made by a public officer in the performance of official duty" could be "prima

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facie evidence as to the existence of that fact, but . . . records of investigations and inquiries conducted . . . by public officers concerning causes and effects involving the exercise of judgment and discretion, expressions of opinion, and making conclusions are not admissible in evidence as public records" (emphasis added).

Combining the Slavski standard with Massachusetts common law (evidence showing that a statute was violated is some evidence of negligence, although not negligence per se, see Lindsey v. Massios, 372 Mass. 79, 83 [1977]), a jury is permitted to hear evidence from which they could conclude that a statute was violated. For example, in Lindsey, a suit against the landlord by a visitor to a three-family apartment who fell on an unlit common stairway, testimony probative of negligence, that the light in the hallway was not lit, and that G. L. c. 144, s. 61, required a light in such hallways, was properly admitted. Id. at 83-84. This is the type of "primary fact" evidence permitted by Slavski. In keeping with this, it is entirely proper to offer in evidence, as was done in the case before us, an OSHA standard to show the relevant standard of care. In contrast, the admission of OSHA citations rather than OSHA standards plainly implicates the Slavski prohibition against expressions of opinion and conclusions. [Note 10] The OSHA citations were thus properly excluded.

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4. NBG's settlement with a coindemnitor. NBG had previously asserted claims against third-party defendant F.H. Newton Electrical Co., Inc. (Newton), for indemnification, contribution, negligence, breach of warranty, and breach of contract. As part of a global settlement between NBG's and Newton's insurers [Note 11] prior to trial of the case at bar, NBG dismissed these third-party claims and released Newton from liability therefor. Mass Electric claims that the trial judge erred in refusing to extinguish or decrease Mass Electric's indemnity obligation to NBG because NBG's release of its claims against Newton destroyed Mass Electric's rights of subrogation and contribution as against Newton. There was no error.

There is a basic flaw in Mass Electric's argument. Whether Mass Electric can succeed in its subrogation or contribution claims against Newton notwithstanding NBG's release of its claims against Newton has not yet been adjudicated. Such claims were not brought by Mass Electric against Newton in the instant litigation, nor, to our knowledge, in any other. We do not have a copy of the relevant insurance contract nor do we even know if Newton had any causal connection, for work performed under its 1988 agreement with NBG, for the accident in 1990 that could possibly trigger an indemnity obligation. See Collins v. Kiewat Constr. Co., post 796. Unless and until such claims are properly resolved by a trial court, it is premature for us to consider the issues of whether Mass Electric has subrogation or contribution rights against Newton and, if so, whether NBG's release of its claims against Newton in any way impaired those rights. These are

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themselves necessary predicates to a determination of what claims, if any, Mass Electric or Newton might have as against NBG. What is clear at this juncture, however, is that Mass Electric's present obligation to indemnify NBG is independent of and cannot be affected by the as yet unknown outcome of any such litigation.

Judgment affirmed.