ACKER v. RAY ANGELINI, INC. et al

Filing 104

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GERALD A. MCHUGH ON 9/29/2017. 9/29/2017 ENTERED AND COPIES MAILED AND E-MAILED. MAILED TO UNREPS.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MATTHEW ACKER,
Plaintiff,
v.
RAY ANGELINI, INC. and
AJA SKIES THE LIMIT, INC.,
Defendants,
v.
DDM STEEL CONSTRUCTION, LLC,
FRANK LUBISKY d/b/a UNION ROOFING,
and UNION ROOFING CONTRACTORS,
INC., d/b/a UNION ROOFING,
Third Party Defendants.

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McHUGH, J.

CIVIL ACTION
No. 14-0019

SEPTEMBER 29, 2017

MEMORANDUM

This is a tort action with crossclaims in which I previously ruled that a contract for
indemnity between Ray Angelini, Inc. (RAI), and Union Roofing Contractors (Union) was
legally valid and enforceable under both Pennsylvania and New Jersey law. 2016 W.L. 4379246
(E.D. Pa. 2016). Following a settlement with Plaintiff Matthew Acker, acting in accordance with
a procedure agreed to by the parties, I held a hearing at which I determined that Plaintiff’s
injuries were not solely attributable to negligence on the part of RAI, with result that RAI was
entitled to indemnity from Union in the amount of $450,000.00 under the terms of the contract.
(Ruling issued from the bench, July 17, 2017, Document 99). The role remaining issue is
whether RAI is also entitled to counsel fees, which the parties have addressed in supplemental
submissions to the court.

The record is clear that RAI itself has not expended any sums in the defense of Acker’s
claim. RAI’s submission seeks reimbursement for costs and fees expended by its liability
carrier, Travelers. Union objects on that ground that Travelers is not a party to the indemnity
contract, which runs between RAI and Union. It argues that because RAI itself expended
nothing on legal fees and costs, no indemnity is owed for such items. It further points out that
Travelers in a party to a pending declaratory judgment in New Jersey, where the obligations of
the respective carriers involved in the underlying tort case are being litigated.
RAI submits no legal authority for its position; it simply assumes that if it is entitled to
indemnity, then so too is its liability carrier. But the issue before me is strictly contractual, and
no language in the contract RAI seeks to enforce would extend to its carrier, a non-party to the
agreement. I am persuaded by Union’s argument that Travelers simply has no rights here, and
for that reason will not supplement the award announced from the bench with counsel fees or
costs, because RAI itself suffered no such losses.
An order will be entered entering judgment in favor of RAI in the amount of
$450,000.00, and the Clerk will be instructed to mark this matter closed.

/s/ Gerald Austin McHugh
United States District Judge