Indemnity provisions are common features of contracts between project owners and engineering firms tasked with design elements of the project.  However, a project owner sued by a general contractor cannot simply ride the contractor’s coattails to prove the project owner’s indemnity claims, as the United States District Court for the District of Massachusetts held in a recent summary judgment decision.  New England Building & Bridge Co., Inc. v. Town of Cohasset, No. 21-cv-11567-DJC, 2024 WL 2304843, at *1 (D. Mass. May 21, 2024). The project owner still must prove the liability of the engineer under the indemnity agreement and cannot simply rely on the underlying claim.

The Town of Cohasset (“The Town”) contracted New England Building & Bridge Company, Inc. (“NEBB”) to rebuild a small stream dam.  The Town also contracted with CDM Smith, Inc. (“CDM”), an engineering firm, to design the dam and provide hydraulic calculations for a related pump and drainage system.

CDM specified an undersized drainpipe, which delayed the project and increased costs.  NEBB submitted a change order for the increased costs and delay.  The Town refused to pay NEBB for the additional time and costs, prompting NEBB to file suit for breach of contract.  The Town, in turn, filed a third-party complaint for indemnity against CDM, arguing any additional amounts owed to NEBB should be paid by CDM.

CDM moved for summary judgment arguing The Town did not provide necessary expert evidence of CDM’s negligence to support the indemnity claim.  The Town argued it was not required to prove CDM’s negligence because it had a contractual indemnity claim.  The Town conceded it had not retained its own experts to testify CDM was negligent, but argued NEBB’s expert testimony regarding the undersized drainpipe design was sufficient to overcome summary judgment.

The Court granted CDM’s Motion.  The Court first held the indemnity obligation only applied to damages caused by CDM’s negligence, so therefore The Town was required to establish negligence.  The Court also held The Town could not simply ride NEBB’s coattails in establishing the breach.  Instead, the alleged deficiencies of the drainpipe design required expert testimony.  While NEBB’s expert may have testified the pipe was undersized, he did not address the standard of care applicable to engineering work nor the that a breach by CDM proximately caused the damage. At best, NEBB simply established the specified pipe would not properly drain the area, not that CDM’s specification of the pipe breached the standard of care.

It is not unusual for an owner or a general contractor to try and skirt the need for expert testimony to prosecute their claims.  We have seen other owners attempt to rely on the experts in an underlying claim to prove their indemnity claim.  The Court’s decision in this case reflects that proving a design was inadequate is not the equivalent of proving the architect or engineer breached the standard of care.