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Pepe v. Township Of Plainsboro2/26/2001
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 6, 2001
This controversy arises out of a municipal construction contract. The sole issue raised on this appeal is whether the contractual indemnification given by the general contractor, defendant cross-claimant Riefolo Construction Co., Inc., to the Township of Plainsboro, "its officers, agents, and employees," includes within its protection, as an agent of the municipality, defendant Wagner-Hohns-Inglis (WHI), the independent contractor retained by Plainsboro as contract administrator to inspect the work as it was being performed and to assure that it was being performed in accordance with specifications and on a timely basis. Riefolo appeals from a summary judgment and an order denying reconsideration thereof that accorded WHI the benefit of the indemnification provision of the contract between Plainsboro and Riefolo. We reverse.
The underlying facts are not in dispute. Plainsboro, in furtherance of its plan to construct a new public works building, retained an architect to prepare plans and specifications and an engineer to perform the necessary soil testing. Riefolo was awarded the contract as general contractor. Plainsboro then retained WHI to serve as contract administrator, a function described as being the owner's representative at the job site to ensure the proper and timely execution of the job. It appears that Plainsboro does not have a civil engineer on its payroll either as a municipal officer or employee and that the qualifications of WHI's employees who were actually assigned to the Plainsboro job included either a building inspector's or civil engineer's license. The fee arrangement agreed upon between Plainsboro and WHI was on an hourly basis, it being understood that supervision of the job would not generally consume an entire eight-hour day.
Riefolo subcontracted with defendant Kenneth Giovanelli to do excavation work. On September 7, 1994, an employee of Giovanelli dug a large pit for a sewer section pump. The pit had no shoring. On that day plaintiff Michael Pepe, an employee of Riefolo, went into the pit to do carpentry work. The pit collapsed while he was in it, and he was severely injured.
Plaintiff, whose wife Paula Pepe sued per quod, filed this personal injury action in September 1996 against Plainsboro, its "agents, servants and employees"; the architect who had drawn the plans and specifications; the engineer who had done the soil testing; WHI; Riefolo; Giovanelli; and a group of unknown defendants. The cause of action against WHI was evidently predicated upon its improper inspection of the pit that had collapsed. See, generally, Caravalho v. Toll Bros. and Developers, 143 N.J. 565 (1996). Insofar as we are able to determine from this somewhat incomplete record, summary judgment was granted to Plainsboro, its agents, servants, and employees dismissing the complaint as against them on tort claims grounds. At some point it appears that the action was terminated as against the architect and engineer, and no unknown defendants were ever identified. Riefolo, as plaintiff's employer, was let out vis-a-vis plaintiff because of the exclusivity of the workers' compensation remedy, but not as to the various cross- claims of the remaining defendants. That left WHI, Giovanelli, and Riefolo.
WHI moved for summary judgment in February 1999. It first sought dismissal of the complaint against it claiming that under Vanchieri v. New Jersey Sports and Exposition, 104 N.J. 80 (l986), it was entitled to derivative immunity under the Tort Claims Act as an independent contractor of a municipality and, hence, that plaintiff's action against it should
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