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DISTRICT OF COLUMBIA v. C.F. & B.

November 21, 1977

DISTRICT OF COLUMBIA, Plaintiff,
v.
C.F. & B., Inc. et al., Defendants



The opinion of the court was delivered by: CORCORAN

 This case is before the Court *fn1" on the motion of the plaintiff District of Columbia for summary judgment and the cross motions of the defendants CF&B and State Construction Corporation (Joint Venture) and Glen Falls Insurance Company (Glen Falls) *fn2" respectively.

 The underlying material facts are not in dispute, and accordingly the case is ripe for disposition by way of summary judgment. The material undisputed facts follow:

 On February 25, 1970, plaintiff District of Columbia, entered into D.C. Contract No. 20579 (the Contract) with the Joint Venture for sewer construction work. The clauses of the contract here in dispute were in standardized language generally employed by the District of Columbia in its construction contracts.

 On February 25, 1970 Policy 06-32-88 (the bond) was entered into between Joint Venture and Glen Falls, bonding Contract 20579. The policy ran from January 1, 1970 to January 1, 1971. The indemnity provisions were devised by the District of Columbia.

 On August 4, 1970, while the Joint Venture was performing the contract, an explosion occurred at the job site. Several Joint Venture employees were injured and one was killed.

 In due course, such employees (or their representatives) were paid appropriate workmen's compensation insurance benefits thus insulating the Joint Venture from any further liability vis-a-vis the employees. *fn3"

 Notwithstanding the receipt of the workmen's compensation benefits the several employees then filed suits *fn4" against the District of Columbia in the U.S. District Court for the District of Columbia for the injuries (and death) sustained in the August 4th accident. *fn5"

 Thereupon the District of Columbia sent "action over" letters to the Joint Venture calling upon it to defend the suits in the U.S. District Court. The Joint Venture took no action and did not appear to defend.

 The U.S. District Court jury found in favor of the employees and awarded damages in the gross amount of $376,875 against the District of Columbia. The several verdicts were based upon jury interrogatories finding that the District of Columbia had breached its duty to guard Joint Venture's employees against injuries while performing inherently dangerous work. *fn6"

 Notwithstanding that the Joint Venture was not party to the suit, and no charges against it were made in the complaint, a special interrogatory was submitted to the jury requesting it to find whether Joint Venture had failed to take reasonable care to guard against the inherent or intrinsic dangers of the work in which its employees were engaged. *fn7" The jury answered this interrogatory in the affirmative.

 On appeal, the U.S. Court of Appeals affirmed the U.S. District Court judgments, holding that the District of Columbia had breached duties which were non-delegable. Lindler v. District of Columbia, 164 U.S. App. D.C. 35, 502 F.2d 495, 500 (1974).

 The District of Columbia paid the several judgments totaling $376,875 in full and thereupon brought this action against the Joint Venture and Glen Falls to recover the amount of the judgments (plus attorneys fees, and costs) alleging that it is entitled thereto under the indemnity provisions of the contract and performance bond, construed in the light of the jury response to the special interrogatory 1(b). *fn8" See supra, note 6.

 Article 10 of the contract reads in pertinent part as follows: *fn9" ...


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