Donald J. Hoiland v. Ajd Construction Co., Inc.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-2753-23

A-3553-23

A-3782-23

DONALD J. HOILAND and

MANDY HOILAND, his wife,

Plaintiffs-Respondents,

v.

AJD CONSTRUCTION CO., INC.,

Defendant-Appellant,

and

GRAND LHN III, U.R., LLC, GRAND

LHN II URBAN RENEWAL, LLC,

GRAND LHN I URBAN RENEWAL,

LLC, GRAND LHN URBAN

RENEWAL 1, LLC, GRAND LHN,

III, LLC, and P. ESPOSITO

CONSTRUCTION, LLC,

Defendants,

and

IRONSTATE DEVELOPMENT

COMPANY, IRONSTATE

DEVELOPMENT COMPANY,

LLC, ESPOSITO CONSTRUCTION,

LLC, ESPOSITO INDUSTRIES, LLC,

ESPOSITO GROUP, LLC, AMERICAN

SAFETY PARTNERS, LLC, MEN OF

STEEL ENTERPRISES, LLC, MEN OF

STEEL REBAR FABRICATORS, LLC,

and EMPIRE STATE REBAR

INSTALL, LLC,

Defendants-Respondents.

____________________________________

DONALD J. HOILAND and

MANDY HOILAND, his wife,

Plaintiffs-Appellants,

v.

AJD CONSTRUCTION CO., INC.,

GRAND LHN III, U.R., LLC, GRAND

LHN II URBAN RENEWAL, LLC,

GRAND LHN I, URBAN RENEWAL,

LLC, GRAND LHN URBAN

RENEWAL 1, LLC, GRAND LHN, III,

LLC, IRONSTATE DEVELOPMENT

COMPANY, ESPOSITO

CONSTRUCTION, LLC, P. ESPOSITO

CONSTRUCTION, ESPOSITO

INDUSTRIES, LLC, ESPOSITO

GROUP, LLC, IRONSTATE

DEVELOPMENT COMPANY, LLC,

AMERICAN SAFETY PARTNERS,

LLC, MEN OF STEEL ENTERPRISES,

LLC, MEN OF STEEL REBAR

FABRICATORS, LLC, and EMPIRE

STATE REBAR INSTALL, LLC,

A-2753-23

2

Defendants-Respondents.

____________________________________

DONALD J. HOILAND and

MANDY HOILAND, his wife,

Plaintiffs-Respondents,

v.

AJD CONSTRUCTION CO., INC.,

GRAND LHN III, U.R., LLC, GRAND

LHN II URBAN RENEWAL, LLC,

GRAND LHN I URBAN RENEWAL, LLC,

GRAND LHN URBAN RENEWAL 1, LLC,

GRAND LHN, III, LLC, IRONSTATE

DEVELOPMENT COMPANY, LLC,

P. ESPOSITO CONSTRUCTION, LLC,

ESPOSITO INDUSTRIES, LLC,

ESPOSITO GROUP, LLC, AMERICAN

SAFETY PARTNERS, LLC, and

EMPIRE STATE REBAR INSTALL, LLC,

Defendants-Respondents,

and

MEN OF STEEL ENTERPRISES, LLC

and MEN OF STEEL REBAR

FABRICATORS, LLC,

Defendants-Appellants.

____________________________________

Argued (A-2753-23) and Submitted (A-3553-23 and A-3782-23)

January 22, 2026 – Decided February 6, 2026

Before Judges Mawla, Bishop-Thompson, and Puglisi.

A-2753-23

3

On appeal from the Superior Court of New Jersey, Law

Division, Hudson County, Docket No. L-2754-19.

Sean E. Harriton argued the cause for AJD Construction

Co., Inc., appellant in A-2753-23 and respondent in A-

3553-23 and A-3782-23 (Kahana Feld LLP, attorneys;

Sofya Uvaydov and Sean E. Harriton, of counsel and on

the briefs).

Thomas J. Coffey argued the cause for Men of Steel

Enterprises, LLC and Men of Steel Rebar Fabricators,

LLC, appellants in A-3782-23 and respondents in A-

2753-23 and A-3553-23 (Donnelly Minter & Kelly,

LLC, attorneys; Patrick B. Minter, of counsel; David

M. Blackwell and Thomas J. Coffey, on the briefs).

Clark Law Firm, PC, attorneys for Donald J. Hoiland

and Mandy Hoiland, appellants in A-3553-23 and

respondents in A-2753-23 and A-3782-23 (Gerald H.

Clark and Lazaro Berenguer, of counsel and on the

briefs).

Lewis Brisbois Bisgaard & Smith, LLP, attorneys for

respondents Esposito Construction, LLC, Esposito

Industries, LLC, and Esposito Group, LLC (Colin P.

Hackett and Kirandeep Kaur, of counsel and on the

brief).

Marks, O'Neill, O'Brien Doherty & Kelly, PC,

attorneys for respondents Grand LHN III, LLC,

Ironstate Development Company, and Ironstate

Development Company, LLC (Philip J. Degnan and

Jordan A. Gerrity, on the brief).

PER CURIAM

A-2753-23

4

These are three back-to-back appeals. The cases involve a fall at a

construction site in which a jury found AJD Construction Co., Inc. (AJD), the

general contractor, partially liable for plaintiff Donald J. Hoiland's injuries,

awarding him and his wife, plaintiff Mandy Hoiland, damages.

In A-3553-23, plaintiffs appeal from summary judgment entered in favor

of the owners and developers of the site, defendants Grand LHN III, LLC,

Ironstate Development Company, and Ironstate Development Company, LLC

(collectively Grand LHN), and subcontractor defendants Esposito Construction,

LLC, Esposito Industries, LLC, and Esposito Group, LLC (collectively

Esposito). In A-3782-23, another subcontractor, defendants Men of Steel

Enterprises, LLC and Men of Steel Rebar Fabricators, LLC (collectively MOS)

appeal from the trial court's finding AJD was entitled to contractual

indemnification from MOS for its share of the jury award. In A-2753-23, AJD

appeals from the trial court's determination it was not entitled to contractual

indemnification from MOS for sums it was required to pay to plaintiffs for not

accepting plaintiffs' offer of judgment.

For the reasons expressed in this opinion, we affirm in A-3553-23 and A-

3782-23. We reverse in A-2753-23.

A-2753-23

5

Grand LHN owned property in Jersey City, which it intended to redevelop

as a high-rise residential building. It hired AJD to serve as the general contractor

on the project. In pertinent part, the contract between Grand LHN and AJD

stated:

§ 3.3 SUPERVISION AND CONSTRUCTION

PROCEDURES

§ 3.3.1 The Contractor shall supervise and direct the

work, using the Contractor's best skill and attention.

The Contractor shall be solely responsible for and have

control over construction means, methods, techniques,

sequences and procedures and for coordinating all

portions of the work under the Contract, unless the

Contract Documents give other specific instructions

concerning these matters. If the Contract Documents

give specific instructions concerning construction

means, methods, techniques, sequences or procedures,

the Contractor shall evaluate the jobsite safety thereof

and, except as stated below, shall be fully and solely

responsible for the jobsite safety of such means,

methods, techniques, sequences or procedures.

§ 3.15 CLEANING UP

§ 3.15.1 The Contractor shall at all times keep the

premises and surrounding area free from accumulation

of waste materials or rubbish caused by operations

under the Contract. The Contractor shall furnish

dumpsters and other trash containers and receptacles as

may be appropriate and shall direct Subcontractors in

the disposal of refuse and waste materials. Contractor

shall remove and replace dumpsters, trash containers

and receptacles as appropriate for the maintenance of

clean, orderly work areas. . . .

A-2753-23

6

§ 3.15.2 If the Contractor fails to clean up as provided

in the Contract Documents, the Owner may do so and

the cost thereof shall be charged to the Contractor.

§ 3.18 INDEMNIFICATION

§ 3.18.1 To the fullest extent permitted by law the

Contractor shall indemnify, defend, and hold harmless

the Owner . . . from and against claims, damages, losses

and expenses, whether direct or indirect, including but

not limited to attorneys' fees, arising out of or resulting

from performance of the Work or the acts, omissions,

negligence or willful misconduct of the Contractor, its

Subcontractors . . . and . . . anyone directly or indirectly

employed by them . . . , except that the obligation to

defend, indemnify and hold harmless the Indemnified

Parties under this paragraph shall not extend to any

claims, losses and expenses to the extent caused by or

resulting from the sole negligence of the Indemnified

Parties. Contractor shall cause its Subcontractors . . .

to indemnify, defend and hold harmless the

Indemnified Parties as aforesaid with respect to the

Subcontractor's . . . negligence, willful misconduct[,] or

omissions . . . .

....

§ 5.3 SUBCONTRACTUAL RELATIONS

§ 5.3.1 By appropriate agreement, written where legally

required for validity, the Contractor shall require each

Subcontractor, to the extent of the Work to be

performed by the Subcontractor, to be bound to the

Contractor by terms of the Contract Documents, and to

assume toward the Contractor all the obligations and

responsibilities, including the responsibility for safety

of the Subcontractor's Work, which the Contractor, by

these Documents, assumes toward the Owner . . . .

....

A-2753-23

7

§10.1 SAFETY PRECAUTIONS AND PROGRAMS

§10.1.1 The Contractor shall be responsible for

initiating, maintaining[,] and supervising all safety

precautions and programs in connection with the

performance of the Contract.

§ 10.2 SAFETY OF PERSONS AND PROPERTY

§ 10.2.1 The Contractor shall take all necessary

precautions for safety of, and shall provide all

necessary protection to prevent damage, injury or loss

to:

.1 employees on the Work and other persons who

may be affected thereby;

.2 the Work and materials and equipment to be

incorporated therein, whether in storage on or off

the site, under care, custody[,] or control of the

Contractor or the Contractor's Subcontractors

. . . ; and

.3 other property at the site or adjacent thereto,

such as trees, shrubs, lawns, walks, pavements,

roadways, structures[,] and utilities not

designated for removal, relocation[,] or

replacement in the course of construction.

§ 10.2.2 The Contractor shall give notices and comply

with applicable laws, ordinances, rules, regulations[,]

and lawful orders of public authorities bearing on safety

of persons or property or their protection from damage,

injury[,] or loss. Contractor shall provide all facilities

and shall follow all procedures required by the

Occupational Safety and Health Act [(OSHA)]

including, without limitation, providing and posting all

required posters and notices and shall otherwise be

responsible for all other mandatory safety laws

pertaining to the Work of this Contractor.

A-2753-23

8

§ 10.2.3 The Contractor shall erect and maintain, as

required by existing conditions and performance of the

Contract, all appropriate safeguards for safety and

protection, including posting danger signs and other

warnings against hazards, promulgating safety

regulations[,] and notifying owners and users of

adjacent sites and utilities.

§ 10.2.4 When use or storage of explosives or other

hazardous materials or equipment or unusual methods

are necessary for execution of the Work, the Contractor

shall exercise utmost care and carry on such activities

under supervision of properly qualified personnel.

§ 10.2.5 The Contractor, at its sole cost and expense,

shall promptly remedy damage and loss to property

referred to in Sections 10.2.1.2 and 10.2.1.3 caused in

whole or in part by the Contractor, a Subcontractor, . . .

or anyone directly or indirectly employed by any of

them, . . . for which the Contractor is responsible under

Sections 10.2.1.2 and 10.2.1.3, except damage or loss

attributable to acts or omissions of the Owner . . . and

not attributable to the fault or negligence of the

Contractor. The foregoing obligations of the

Contractor are in addition to the Contractor's

obligations under Section 3.18.

§ 10.2.6 The Contractor shall designate a responsible

member of the Contractor's organization at the site

whose duty shall be the prevention of accidents. This

person shall be the Contractor's superintendent unless

otherwise designated by the Contractor in writing to the

Owner . . . .

AJD subcontracted with MOS to install steel rebar for the project. It also

subcontracted with Esposito to: perform demolition, excavation, grading,

A-2753-23

9

backfilling, compacting, and paving; and stabilize the construction entrance.

Esposito agreed to: perform its work in a safe manner; take all necessary safety

precautions; develop and implement a safety program to prevent injury to its

employees and other persons at the site; abide by Owner's and Contra ctor's safe

work practices, and all local, state, and federal laws with respect to safety and

accident prevention; and provide for frequent and regular safety inspections.

AJD's contracts with MOS and Esposito contained an identical

indemnification clause, which read:

Section 10. INDEMNIFICATION

(a) To the fullest extent permitted by law,

Subcontractor shall indemnify, defend and hold

harmless Contractor, Owner, [and] any other person or

entity required to be indemnified by Contractor under

the Prime Contract, . . . from and against any and all

actual, threatened or alleged claims, citations, fines,

forfeitures, penalties, liens, causes of actions, suits,

demands, damages, liabilities, losses, costs and

expenses, including, but not limited to, attorney's fees

(the "Claim") that: (i) arise from Subcontractor's

breach of a term of the Contract Documents[;] (ii) are

caused or alleged to have been caused by

Subcontractor, a Sub-subcontractor or any person for

whose acts or omissions Subcontractor or Sub-

subcontractor may be responsible (including, but not

limited to, violations of Owner's and Contractor's

health and safety requirements); (iii) arise from, relate

to or otherwise are connected with or incidental to the

Work, whether or not caused or alleged to be caused in

part by Owner or Contractor; or (iv) arise from actual

A-2753-23

10

or alleged contamination, pollution, or public or private

nuisance, arising directly or indirectly out of this

Agreement or any acts or omissions of Subcontractor,

its subcontractors, including but not limited to,

handling, transportation, treatment, storage or disposal

of Hazardous Materials, substances, samples or residue

or out of Subcontractor's failure to comply with any

warranty contained in this Agreement . . . . Nothing

herein shall require Subcontractor to indemnify

Contractor or Owner for claims caused by Contractor's

or Owner's sole negligence. . . .

(b) Contractor, in its sole discretion, reserves the

right to retain its own counsel to defend it, Owner or

other indemnified parties, against a Claim covered by

Section 10(a) at Subcontractor's cost and expense.

Contractor's reservation of such election to defend with

counsel of its own choice shall not limit Subcontractor's

obligations under Section 10(a).

On November 2, 2017, Donald1, an MOS project superintendent, stepped

on a fist-sized rock while he was walking with a delivery driver on the site's

single unpaved access road to determine where to offload a rebar delivery.

Donald's injury required multiple back surgeries. According to Donald, the dirt

access road was used by all delivery vehicles and was "pretty chewed up,"

causing rocks in the ground to work their way to the surface. "[T]he natural dirt

. . . on the job had a lot of large rocks inherent in it."

1

Intending no disrespect, we refer to Donald by his first name to distinguish

him from his wife, who shares his surname and is also a plaintiff.

A-2753-23

11

Plaintiffs sued defendants for negligence. AJD demanded MOS assume

its defense; and MOS declined. AJD filed an answer, which included a cross-

claim for contractual indemnification against MOS and Esposito. MOS filed an

answer denying AJD's cross-claim.

The discovery process included a deposition of a Grand LHN corporate

representative. He visited the site several times each month to: attend twice-

monthly construction meetings with AJD representatives; attend monthly

meetings with construction lenders; and meet with independent consultants.

Another Grand LHN representative was on site nearly every day, and one or two

owner-representatives were periodically on site.

The construction meetings were to review plans and assess the work

progress, and lasted half an hour. The corporate representative did not recall

any discussion of site safety issues. He confirmed Grand LHN relied upon AJD

to keep the site safe, and AJD, not Grand LHN, controlled the site and the

contractors' activities. If he noticed an on-site hazard, he would have notified

AJD.

Esposito's owner was also deposed and confirmed Esposito built the dirt

access road on the site using stone for soil stabilization. However, Esposito was

only responsible for the road's subsequent maintenance at the request of AJD ,

A-2753-23

12

and for a separate fee. Esposito was not on-site every day. If trucks caused ruts

or more stones were needed to stabilize the road, AJD would contact Esposito

to re-grade the road and add stone. The road was the most traveled part of the

site, but no one ever complained to Esposito's owner about the condition of the

access road, or directed Esposito to maintain or repair it. The stone Donald

slipped on appeared to be the same size as the two-and-one-half inch rocks

Esposito used to construct the site entrance.

In October 2017, Esposito dug a trench along the access road for the

installation of a gas line. On October 21, 2017, nearly two weeks before

Donald's accident, Esposito restored the road by backfilling the trench and then

compacting and rolling the fill. According to Esposito's owner, this would have

eliminated any loose rocks from the surface of the road. AJD inspected

Esposito's work afterwards, and never stated the road was unsafe or complained

about the quality of the work.

AJD's project manager was deposed and confirmed Esposito was

responsible for maintaining the access road only at the direction of AJD. AJD

controlled all activities at the site and had the ultimate responsibility for site

safety. The project manager did not think the access road could have been made

safer. He described the earth at the construction site as consisting of dirt,

A-2753-23

13

crushed concrete, and rocks. The rocks were "everywhere" but he did not recall

any complaints about the portion of the access road where Donald fell. When

he viewed the area, he believed it was safe.

The assistant to AJD's project manager also testified and explained

Esposito was only required to perform maintenance on the access road if they

were asked to do so by AJD. He explained Esposito put down stone all along

the road because it became muddy and trucks were continuously using the road

for deliveries.

Plaintiffs' expert opined Esposito was at fault for leaving fist-sized rocks

and chunks of cement from its demolition work on the access road. He claimed

Esposito failed to properly surface and grade the access road, including after it

backfilled the gas line trench. The expert also asserted Esposito also failed to

comply with the safety requirements of its subcontracting agreement and

violated several OSHA regulations.

On June 19 and September 14, 2020, the trial court dismissed plaintiffs'

claims against MOS, based on the workers' compensation bar. MOS then moved

for summary judgment against AJD to dismiss its cross-claim for

indemnification.

A-2753-23

14

MOS argued its indemnification agreement with AJD, to hold AJD

harmless for losses or damages resulting from AJD's sole negligence, violated

public policy. The indemnity language did not clearly and explicitly state it

included indemnification for AJD's own negligence. Beyond contractual

indemnification, MOS asserted there was no basis for common law

indemnification because this type of indemnification only exists against a

tortfeasor who is primarily liable for a plaintiff's injury. MOS alleged it was not

liable because Esposito prepared and maintained the road where Donald fell,

and he was on the road to cross the jobsite.

The first motion judge issued written findings and found there was a

substantial nexus between the claim and the subject matter of the subcontractor's

work duties to trigger the indemnity provision because Donald's accident

happened while he was walking on the access road, performing his job to further

MOS's contract with AJD. There were "facts in the record that could lead a jury

to find . . . plaintiff comparatively negligent for his accident, thus triggering the

indemnification clause." She denied summary judgment, reasoning "[i]ssues

regarding liability are issues of material fact." The judge also denied MOS

summary judgment on common law indemnification because a "jury could find

A-2753-23

15

. . . AJD was free of fault in [Donald]'s accident," thereby requiring MOS to

indemnify AJD.

The motion judge denied MOS's motion on November 5, 2021. She

subsequently denied its motion for reconsideration for the same reasons on

January 7, 2022.

Esposito moved for summary judgment dismissal of plaintiffs' claims and

AJD's cross-claim for indemnification. The judge granted Esposito's motion on

January 18, 2022. The same day, she also granted Grand LHN summary

judgment dismissal of plaintiffs' claims.

The judge observed "AJD already admitted that its subcontract with

Esposito 'did not require Esposito to maintain any of the roadways on the site

. . . unless so directed by AJD.'" Therefore, plaintiffs failed to show Esposito

had a duty to maintain the area. The judge found OSHA did not create a duty

because "OSHA was designed for regulatory enforcement, not for independent

civil remediation." Moreover, "New Jersey public policy favors the general

contractor as the 'single repository of the responsibility for the safety of all

employees of a job.' Kane v. Hartz Mountain Indus[.], Inc., 278 N.J. Super. 129,

141 (App. Div. 1994)." Because "AJD was the general contractor, not Esposito,"

A-2753-23

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plaintiffs did not show "the duty to maintain belonged to Esposito, either in lieu

of or in addition to AJD."

The motion judge granted Esposito summary judgment on the contractual

indemnification claims asserted by AJD, finding "neither AJD nor . . .

[p]laintiff[s] . . . presented facts showing negligence on the part of Esposito that

would trigger the [contractual] indemnification provisions." The judge found

AJD's common law indemnification claims failed for similar reasons and "AJD

ha[d] not shown that it was free of fault in the causing of the accident." AJD's

contribution claims against Esposito failed because Esposito did not breach a

duty and there was "no common liability for negligence between AJD and

Esposito." The judge also dismissed AJD's breach of contract and failure to

procure insurance claims because AJD did not oppose Esposito's summary

judgment motion on these issues.

The motion judge issued separate written findings for Grand LHN's

motion for summary judgment. The evidence showed the rock Donald slipped

on "was obvious and visible to [him] upon ordinary observation. Further, [he]

was walking upon the property to identify where deliveries should be made [,

which] was incidental to the very work [Donald]'s employer was hired to

perform." As a result, Grand LHN's "duty did not extend to the elimination of

A-2753-23

17

operational hazards[,] which were obvious and visible to the invitee[,] and which

are part of the work the contractor was hired to perform."

Again, the judge found OSHA was unavailing. She noted in Dawson v.

Bunker Hill Plaza Associates, 289 N.J. Super. 309, 321 (App. Div. 1996), we

"found that while OSHA regulations require a general contractor to comply with

OSHA requirements, these regulations do not apply to owners and do not impose

any affirmative duty of compliance upon such owner."

Because plaintiffs did not show Grand LHN breached a duty, their

negligence claims failed. It followed that because an award of compensatory

damages is a prerequisite to an award of punitive damages, Grand LHN was also

granted dismissal of plaintiffs' punitive damages claims.

On December 2, 2021, plaintiffs served an offer of judgment on AJD in

the amount of $2,750,000. AJD took no action on the offer and did not consult

MOS in its decision. MOS was, however, aware of the offer.

The matter was tried before a different judge and a jury, with AJD as the

sole remaining defendant. On September 25, 2023, the jury returned a verdict

against AJD and awarded plaintiffs $5,313,168. The jury apportioned liability

as eighty percent against AJD and twenty percent against Donald.

A-2753-23

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In October 2023, AJD moved for summary judgment and reconsideration,

seeking contractual indemnification from MOS for its share of the damages

award. MOS cross-moved for a declaration that it had no duty to indemnify

AJD because the January 18, 2022 order found the contractual indemnification

claim against Esposito was not triggered.

On December 4, 2023, following oral argument, the trial judge granted

AJD's motion and denied MOS's motion. The judge pointed to the motion

judge's findings in the November 5, 2021 order that indemnification would be

triggered if Donald was "found to be comparatively at fault thus rendering AJD

partially rather than solely liable." She recounted how "[o]n the first day of

trial[,] counsel for [MOS] stated that they would not be participating in the trial

because it had already been determined that the indemnification provision was

triggered." MOS's counsel agreed "there was no factual issue as to

indemnification that was left to be determined by the jury and in fact[,] no

evidence regarding the indemnification provision was presented at trial."

The trial judge concluded "the issue of enforceability of the

indemnification provision" was "already [] decided" by the first motion judge

on November 5, 2021. There was insufficient evidence presented to show this

decision was erroneous. "The decision with regard to Esposito was made on a

A-2753-23

19

different basis. It was . . . based upon the lack of a substantial nexus, not that

the indemnification provision under the contract was not compliant with

prevailing law . . . ." The "substantial nexus ruling was with regard to different

facts against a . . . now non-party Esposito." The trial judge declined to modify

the motion judge's ruling. Since she found contractual indemnification, she

concluded there was no need to address common law indemnification.

On December 4, 2023, the trial judge issued orders directing MOS to

contractually indemnify AJD "for the entirety of the jury verdict, less the amount

attributable to [Donald]'s negligence, as well as interest and attorney[']s fees and

costs attributable to the defense of AJD." The orders directed AJD to file its

motion for fees and costs against MOS. The judge also entered a "Combined

Order for Judgment Upon Compensatory Damages Jury Verdict and Offer of

Judgment" in favor of plaintiffs and ordered AJD to pay plaintiffs' counsel's

attorney's fees and costs, pursuant to Rule 4:58-2.

As a result of the December 2023 orders, AJD moved for reimbursement

of counsel fees and costs of $1,818,291.73 by MOS. MOS cross-moved to

correct the judgment, arguing it should not have to pay AJD's costs and fees

resulting from AJD's rejection of plaintiffs' offer of judgment. Even though

MOS knew about the offer of judgment, it argued indemnification was not

A-2753-23

20

triggered because AJD never discussed the offer of judgment with MOS or stated

it would pursue MOS for indemnification regarding the offer of judgment. The

indemnification agreement also said nothing about an offer of judgment.

AJD's counsel argued they notified MOS several times during the

litigation that AJD would be seeking total indemnification for its fees and costs

under the contractual indemnification provision. Counsel asserted AJD could

not accept or reject the offer of judgment because MOS had violated the

contractual indemnification provision by not participating in the litigation.

MOS had notice it would be liable to indemnify AJD prior to trial when the first

motion judge made her ruling in November 2021, finding the indemnification

clause would be triggered if Donald were found comparatively negligent.

Plaintiffs' counsel added MOS was aware of the situation because it was

monitoring the trial. MOS was also involved in the case because plaintiffs'

counsel tried to schedule mediations and MOS's counsel would not agree to it.

A second motion judge heard oral argument on the competing motions and

made oral findings. He found MOS knew about the offer of judgment when it

was filed on December 2, 2021. There was no dispute AJD asked MOS for

contractual indemnification as early as November 14, 2019. However, the judge

found an "offer of judgment is not contractual indemnification" because it was

A-2753-23

21

not in the contract. Therefore, AJD was not entitled to contractual

indemnification.

The judge observed "[t]here's no question . . . plaintiff[s are] entitled to

. . . recover the sanctions due to the non-acceptance of . . . plaintiff[s'] offer of

judgment from . . . AJD." (Emphasis added). However, AJD "cannot pursue

contractual indemnification [be]cause the offer of judgment issued clearly could

not have been contemplated by the parties when they entered into that contract

and is not specifically addressed in the contract." The judge noted because the

contract was drafted by AJD, any ambiguity in it would be construed against it.

He further found Rule 4:58-2 "does not address indemnification in any way

whatsoever."

The judge found, even though MOS knew about the offer of judgment in

December 2021, "[t]here was no communication between AJD and [MOS] . . .

specifically regarding[] the offer of judgment[,] certainly within the [ninety]

days required by the [Rule]. The decision to reject the offer of judgment was

made by [AJD,] without input from [MOS]." He concluded, "AJD never

solicited or requested input from [MOS] as to whether the offer of judgment

should or should not be accepted." MOS was not blameless because the judge

found "throughout the course of all the settlements [MOS] might have been a

A-2753-23

22

problem, a wrench in the operations." It also "participated in all [fourteen] days

of the trial."

On April 5, 2024, the second motion judge entered an order requiring AJD

to pay plaintiffs' counsel fees and costs of $1,818,291.73. On June 25, 2024,

the judge entered final judgment directing MOS to pay AJD $5,691,072.16,

comprised of $5,157,247.59 on the molded verdict and $533,824.57 in attorney's

fees and costs.

I.

Our review of a summary judgment order is de novo and governed by the

same standard as the trial court. Templo Fuente De Vida Corp. v. Nat'l Union

Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). Summary judgment must

be granted "if the pleadings, depositions, answers to interrogatories and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact challenged and that the moving party is

entitled to a judgment or order as a matter of law." R. 4:46-2(c). If there is no

genuine issue of fact, we then decide whether the trial court's ruling on the law

was correct. Walker v. Atl. Chrysler Plymouth, 216 N.J. Super. 255, 258 (App.

Div. 1987).

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The well-known legal standard for a negligence claim requires a plaintiff

demonstrate: "(1) a duty of care, (2) a breach of that duty, (3) proximate cause,

and (4) actual damages." Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting

Polzo v. Cnty. of Essex, 196 N.J. 569, 584 (2008)). "To render a [defendant]

liable [for negligence,] there must be found a breach of a duty, which duty, if

observed, would have averted the plaintiff's injuries." Fortugno Realty Co. v.

Schiavone-Bonomo Corp., 39 N.J. 382, 393 (1963).

A.

In A-3553-23, plaintiffs argue it was error to grant Grand LHN summary

judgment because it had a non-delegable duty to protect Donald from the

concrete on the roadway. Grand LHN was not relieved of its responsibility

because MOS did not create the dangerous condition causing Donald's injury .

MOS was not hired to construct or maintain the road, and Donald's use of the

road did not trigger the contractor's hazard exception. Even if the exception

applied, Grand LHN was not entitled to summary judgment because it violated

Jersey City Construction Safety Ordinance 08-100, which required it to manage

safety and enforce OSHA standards. Plaintiffs also claim the court erred when

it relied upon Mavrikidis v. Petullo, 153 N.J. 117 (1998), because they never

asserted Grand LHN was vicariously liable for AJD's or Esposito's negligence.

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"As a general rule, a landowner has a non-delegable duty to use reasonable

care to protect invitees against known or reasonably discoverable dangers."

Dawson, 289 N.J. Super. at 317-18 (quoting Kane, 278 N.J. Super. at 140). The

duty to provide a reasonably safe place to work is

relative to the nature of the invited endeavor and does

not entail the elimination of operational hazards which

are obvious and visible to the invitee upon ordinary

observation and which are part of or incidental to the

very work the contractor was hired to perform.

[Id. at 318 (quoting Sanna v. Nat'l Sponge Co., 209 N.J.

Super. 60, 67 (App. Div. 1986)); see Muhammad v. N.J.

Transit, 176 N.J. 185, 198 (2003).]

A landowner can assume the independent contractor and its employees possess

the skills to recognize the dangers associated with their work and calibrate their

methods to ensure their safety. Ibid.

Although Donald was not hired to build or maintain the access road, the

record reflects part of his job involved assisting delivery drivers in situating

their trucks on the access road to facilitate offloading the rebar needed for MOS's

work. There was only one access road and Donald admitted he necessarily

traversed it frequently in his supervisory capacity. Donald also acknowledged

he was aware the access road's soil was rocky, and that weather and heavy traffic

brought rocks to the surface. Thus, the operational hazard created by the rocks

in and on the access road was obvious and visible to Donald, upon ordinary

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observation and incidental to his supervisory duties. Summary judgment in

Grand LHN's favor was properly granted because it was not required to

eliminate this operational hazard and could reasonably assume Donald was

sufficiently skilled to recognize the hazard and ensure his own safety.

Also, we are unpersuaded the alleged ordinance or OSHA violations

imposed liability on Grand LHN and affirm substantially for the reasons

expressed in the first motion judge's written opinion dated January 18, 2022.

We add the following comments.

"The absence of any OSHA regulation imposing a specific affirmative

duty on the property owner is sufficient to warrant the grant of summary

judgment to" the landowner. Izzo v. Linpro Co., 278 N.J. Super. 550, 556 (App.

Div. 1995); accord Dawson, 289 N.J. Super. at 321. Plaintiffs concede OSHA

does not impose any affirmative duties on a property owner. They nonetheless

assert Grand LHN was obligated to enforce compliance with OSHA regulations

and maintain a safe project because the Jersey City Construction Site Safety

Manual, as adopted by Jersey City Safety Ordinance 08-100, states the "owner

shall at all times be responsible for the safe construction or demolition of his/her

building." This argument is unconvincing because the ordinance specifies the

mechanism for imposing liability is that the Jersey City Construction Official

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may enforce compliance with the manual by "issuing complaint/summonses"

and imposing fines.

Indeed, OSHA "view[s] regulatory enforcement, and not independent civil

remedial action, as the central means to achieve workplace safety." Alloway v.

Bradlees, Inc., 157 N.J. 221, 235 (1999). While "OSHA regulations are

pertinent in determining the nature and extent of any duty of care," id. at 236,

"a violation of such a standard is no more than evidence of negligence."

Fernandes v. DAR Dev. Corp., 222 N.J. 390, 406 (2015). "[T]he violation of

OSHA regulations without more does not constitute the basis for an independent

or direct tort remedy." Alloway, 157 N.J. at 236; see also Kane, 278 N.J. Super.

at 144 ("the finding of an OSHA violation . . . does not constitute negligence

per se").

B.

Plaintiffs also challenge the grant of summary judgment to Esposito. They

claim: the access road was unsafe as built and after it was restored following

the trench work; there were material issues of fact about whether Donald fell on

a piece of crushed concrete left from Esposito's demolition operations; their

expert extensively detailed Esposito's failure to make the access road safe; and

the violation of OSHA standards was relevant to establishing liability.

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Again, we affirm for the reasons expressed in the first motion judge's

January 18, 2022 written opinion. We add the following comments. Plaintiffs

were not entitled to summary judgment against Esposito because: the record

lacks evidence of the condition of the access road immediately after the trench

was backfilled and the surface rolled by Esposito; AJD admitted it was

ultimately responsible for assessing the quality of Esposito's work; it further

admitted Esposito was not required to perform any subsequent maintenance,

including rectifying problems with the access road, unless AJD expressly asked

them to do so; and the expert's reliance on OSHA regulations to establish

liability is unavailing for the reasons we discussed in the preceding section.

C.

In A-3782-23, MOS argues the trial court erred when it found MOS was

contractually required to indemnify AJD for the eighty percent share of the

damages award. It asserts reversal is required given the conflicting

indemnification ruling regarding Esposito. By dismissing Esposito from the

case, the trial court ruled the indemnification provision was ambiguous and did

not entitle AJD to indemnification for its own negligence.

According to MOS, the indemnification provision is also ambiguous

because only one of its five subsections, subsection iii, contains language

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referencing AJD's own negligence. Subsection iii merely provides

indemnification for claims, which "arise from, relate to or otherwise are

connected with or incidental to the Work, whether or not caused or alleged to be

caused in part by Owner or Contractor." MOS claims this language does not

expressly and unequivocally state AJD was entitled to indemnification for its

own negligence. The court should have construed the provision against AJD

because it drafted it.

MOS asserts the indemnification provision was not triggered because

there was no nexus between Donald's work and the accident since Donald was

simply walking on the job site when he fell. The indemnification provision

would have only been triggered if Donald was installing or overseeing the

installation of rebar when he fell.

Appellate review of a trial court's interpretation of a contract is de novo.

Kieffer v. Best Buy, 205 N.J. 213, 222-23 (2011). We owe no deference to the

"trial court's interpretation of the law and the legal consequences that flow from

established facts." Manalapan Realty L.P. v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995).

Our Supreme Court recently stated:

To review an indemnity provision in a contract,

we strive for the same goal as we do in reviewing any

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contractual provision – discerning the intent of the

parties. See Kieffer, 205 N.J. at 223. "The judicial task

is simply interpretative; it is not to rewrite a contract

for the parties better than or different from the one they

wrote for themselves." Ibid. The terms used in the

contract are given their plain and ordinary meaning, and

"[i]f an indemnity provision is unambiguous, then the

words presumably will reflect the parties'

expectations." Ibid.

Indemnity provisions, however, differ from other

contractual provisions in one important respect: when

the meaning of the clause is ambiguous, an

indemnification provision will be "strictly construed

against the indemnitee." Id. at 223-24 (quoting

Mantilla v. NC Mall Assocs., 167 N.J. 262, 272

(2001)).

[Boyle v. Huff, 257 N.J. 468, 478 (2024) (alteration in

original).]

Where the terms of an indemnity provision are unambiguous, "the parties'

agreement 'will be enforced as written when its terms are clear in order that the

expectations of the parties will be fulfilled.'" Mem'l Props., LLC v. Zurich Am.

Ins. Co., 210 N.J. 512, 525 (2012) (quoting Flomerfelt v. Cardiello, 202 N.J.

432, 441 (2010)). "Thus, a contract will not be construed to indemnify the

indemnitee against losses resulting from its own negligence unless such an

intention is expressed in unequivocal terms." Ramos v. Browning Ferris Indus.

of S. Jersey, Inc., 103 N.J. 177, 191-92 (1986).

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We reject MOS's argument the dismissal of Esposito should also have

resulted in MOS's dismissal from the case. Esposito was dismissed because it

had no duty to indemnify AJD since Esposito owed no duty to Donald, was not

responsible for his accident, and indemnification would only be triggered if

Esposito shared in the liability with AJD. The denial of summary judgment to

MOS did not conflict with the Esposito ruling because there was evidence

supporting a finding Donald's own negligence contributed to his accident. This

negligence would be attributable to MOS because it arose from, related to, or

otherwise was connected with or incidental to the rebar work.

MOS's attack on the indemnification language as ambiguous is

unpersuasive. The plain language of the indemnification provision reads as

follows:

(a) To the fullest extent permitted by law,

Subcontractor shall indemnify, defend and hold

harmless Contractor, Owner, any other person or entity

required to be indemnified by Contractor under the

Prime Contract . . . from and against any and all actual,

threatened or alleged claims, . . . fines, . . . penalties,

. . . causes of actions, suits, demands, damages,

liabilities, losses, costs and expenses, including, but not

limited to attorney's fees (the "Claim") that: (i) arise

from Subcontractor's breach of a term of the Contract

Documents, (ii) are caused or alleged to have been

caused by Subcontractor . . . or any person for whose

acts or omission Subcontractor . . . may be responsible

(including, but not limited to, violations of Owner's and

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Contractor's health and safety requirements); (iii) arise

from, relate to or otherwise are connected with or

incidental to the Work, whether or not caused or alleged

to be caused in part by Owner or Contractor; or (iv)

arise from actual or alleged contamination, pollution,

or public or private nuisance, arising directly or

indirectly out of this Agreement or any acts or

omissions of Subcontractor, its subcontractors,

including but not limited to, handling, transportation,

treatment, storage or disposal of Hazardous Materials,

substances, samples or residue or out of Subcontractor's

failure to comply with any warranty contained in this

Agreement . . . . Nothing herein shall require

Subcontractor to indemnify Contractor or Owner for

claims caused by Contractor's or Owner's sole

negligence. . . .

The five subsections of the indemnification provision were not written in

the conjunctive form, but instead stood separately in the disjunctive separated

by an "or." There is nothing confusing or ambiguous about one subsection

discussing indemnification and referencing the contractor or owner's negligence

while the remaining subsections discuss the subcontractor's acts or omissions.

The language of subsection iii is not ambiguous. We have previously

construed the same "whether or not caused in part by the indemnitee" language

as allowing for indemnification for the indemnitee's own negligence. See

Andalora v. R.D. Mech. Corp., 448 N.J. Super. 229, 232 (App. Div. 2017); Est.

of D'Avila v. Hugo Neu Schnitzer E., 442 N.J. Super. 80, 114-15 (App. Div.

2015).

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We are also unpersuaded by MOS's argument regarding the alleged

required "nexus" between Donald's accident and his work. Donald testified in

deposition his work duties included overseeing his work crews and facilitating

deliveries, which necessarily entailed walking back and forth on the single

access road. When his accident occurred, he was walking with a delivery driver

to find the best place on the access road to situate a delivery truck for offloading.

Donald's fall occurred during the performance of his duties, in furtherance of

the work being performed by MOS at the site. No greater nexus was required.

See Leitao v. Damon G. Douglas Co., 301 N.J. Super. 187, 193 (App. Div. 1997)

(in the indemnification context, a claim "arising out of or resulting from the

subcontractor's work" is construed as referring to a claim "growing out of" or

having its "origin in" the subject matter of the parties' underlying agreement).

II.

In A-2753-23, AJD argues the second motion judge erred when he

concluded it was not entitled to indemnification by MOS for the penalties it was

ordered to pay to plaintiffs for not accepting plaintiffs' offer of judgment.

Contrary to the judge's findings, AJD asserts the language of the indemnification

provision, requiring indemnification for "any and all . . . fines, . . . penalties, . . .

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33

damages, liabilities, losses, costs and expenses, including . . . attorney's fees,"

included the offer of judgment penalties.

Rule 4:58-2(a) states

if the offer of a claimant is not accepted and the

claimant obtains a money judgment, in an amount that

is 120% of the offer or more, excluding allowable

prejudgment interest and counsel fees, the claimant

shall be allowed, in addition to costs of suit: (1) all

reasonable litigation expenses incurred following non-

acceptance; (2) prejudgment interest of eight percent on

the amount of any money recovery from the date of the

offer or the date of completion of discovery, whichever

is later, but only to the extent that such prejudgment

interest exceeds the interest prescribed by [Rule] 4:42-

11(b), which also shall be allowable; and (3) a

reasonable attorney's fee for such subsequent services

as are compelled by the non-acceptance.

The purpose of the Rule is to induce settlement. Willner v. Vertical Reality,

Inc., 235 N.J. 65, 81 (2018).

Again, as with all contracts, our review of an indemnification agreement

is de novo. Boyle, 257 N.J. at 477. The "phrase 'any and all' allows for no

exception" with respect to "those types of things thereafter mentioned." Isetts

v. Borough of Roseland, 364 N.J. Super. 247, 256 (App. Div. 2003); accord

Nesby v. Fleurmond, 461 N.J. Super. 432, 439 (App. Div. 2019). "The word

'any' clearly may and should be interpreted as meaning 'all or every.'" Atl. Cas.

Ins. Co. v. Interstate Ins. Co., 28 N.J. Super. 81, 91 (App. Div. 1953).

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34

The parties' indemnification provision required indemnification for "any

and all . . . penalties, . . . costs and expenses, including . . . attorney's fees." This

language readily encapsulated the liability imposed upon AJD under Rule 4:58-

2(a). The second motion judge even referred to the sums sought for refusal to

accept the offer of judgment as a penalty. For these reasons, we conclude his

interpretation of the indemnification agreement as either not contemplating an

offer of judgment, or requiring the parties to draft a specific provision relating

to the consequences of not accepting an offer of judgment, was error. Paragraph

two of the April 5, 2024 order is reversed and remanded for entry of an order

requiring MOS to indemnify AJD for the consequences of not accepting

plaintiffs' offer of judgment.

III.

Finally, to the extent we have not addressed other arguments raised in

these three appeals, it is because they lack sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed in A-3553-23 and A-3782-23. Reversed and remanded in A-

2753-23 for entry of an order consistent with this opinion. We do not retain

jurisdiction.

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