Decisions of Interest

McCarthy v. Turner Construction, Inc. et al

Court of Appeals, Index No. Index No. 107959/05

In a decision dated June 28, 2011, the Court of Appeals affirmed the orders of the lower Courts, after Malapero & Prisco effectively argued that case law imposed
indemnification obligations only upon those “actively” at fault in bringing about a plaintiff’s injury. Therefore, Malapero & Prisco’s insured, a non-negligent vicariously
liable general contractor, was not obligated to indemnify, under common law principles, an equally non-negligent vicariously liable owner.

The Court reasoned that the insured’s demonstration of a lack of actual supervision and/or direction over the subject work was sufficient to establish that the insured was not required to indemnify the property owners for bringing about the plaintiff’s injury.