Court denies actively negligent contractor's third-party claim for common law indemnification
Dr. Fred Leff and his wife sued Morgan-Heller & Associates for damages after their renovated shower collapsed. A sub-contractor, Tartan Plumbing, had cut through a floor joist during installation of the new shower, and the Leffs claimed that Morgan-Heller was actively negligent in concealing and failing to repair the structural damage. Morgan-Heller attempted to join Tartan in the action as a third-party defendant, based on its admitted negligence in severing the floor joist.
The Court refused Morgan-Heller the right to sue Tartan for common law indemnification or contribution, ruling that since the general was being sued for its own active negligence, it was not entitled to seek indemnity from the sub. Under the common law (and absent an express agreement), Morgan-Heller could seek indemnity or contribution only if it was innocent of wrong-doing and its liability exposure was not based on its own alleged fault.