Subcontractor Indemnity Did Not Cover Claim Arising from Contractor Decision

A subcontractor was obligated to provide experienced workers, and the GC had the right to tell the sub to remove anyone without the requisite experience. The sub’s workforce included a woman without any prior experience with the rebar bending machine, required for the task at hand. The GC directed that she be removed from the site, and she was replaced by a male worker. The discharged worker then brought a discrimination claim against the GC via the Connecticut Commission on Human Rights and Opportunities. The GC settled that claim by paying $30,000 to the worker, and then sought to recover that money from the sub.

In the dispute between GC and sub, the lower court fact-finder (an attorney appointed per CT procedure) determined that the worker had made a claim for discrimination only against the GC and not against the sub. Thus, there was no basis to find that the sub had acted contrary to applicable law, and no claim of action by the sub contrary to its subcontract.

The GC argued that the claims arose from the sub’s placement of an unqualified worker on the site. But that argument was not put in front of the lower court fact-finder. Even if that argument had been advanced, per the court, it would not have been successful. And even if the sub failed to provide a properly qualified worker, that was not a tortious act invoking the indemnity. The sub would not be called upon to indemnify the GC for the discharged worker’s claim.

The case is Gemma Power Sys. v. Smedley Co., 2017 Conn. Super. LEXIS 4093 (July 26, 2017) (LEXIS subscription required).

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