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Fraco Products, Ltd., et al. v. Bostonian Masonry Corporation (Lawyers Weekly No. 11-118-13)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us     12‑P‑933                                                                              Appeals Court   FRACO PRODUCTS, LTD., & another[1]  vs.  BOSTONIAN MASONRY CORPORATION. No. 12‑P‑933. Suffolk.     May 6, 2013.  ‑  September 26, 2013. Present:  Kantrowitz, Katzmann, & Rubin, JJ.       Negligence, Construction work, Scaffolding, Manufacturer, Vicarious liability, Joint tortfeasor.  Indemnity.  Workers’ Compensation Act, Exclusivity provision.  Joint Tortfeasors.  Contract, Indemnity.       Civil action commenced in the Superior Court Department on April 11, 2006.   The case was heard by Nancy Holtz, J., on a motion for partial summary judgment.     James E. Carroll for the plaintiffs. Robert R. Pierce for the defendant.       KATZMANN, J.  This appeal arises from a construction accident and involves a dispute over indemnification.[2]  The primary issue on appeal is whether the trial judge properly granted summary judgment against Fraco Products, Ltd., and Fraco Products, Inc. (collectively, Fraco), on their third-party complaint seeking indemnification from Bostonian Masonry Corporation (Bostonian) on a theory of common-law indemnity, where Bostonian had paid workers’ compensation benefits to the estate of its employee, the plaintiff in the underlying suit.  We affirm. Background.  Fraco is a designer, manufacturer, and seller of industrial mast-climbing platforms used in construction.  The mast-climbing platforms are used instead of scaffolding.  They are long platforms that are hydraulically lifted up (or lowered down) a mast extending up the side of a structure.  Construction workers, such as masons, stand on the platforms to install materials, such as stone and windows.  On April 8, 2004, Fraco sold Bostonian six platforms, including the mast-climbing platform (Machine No. 10) at issue in this construction accident, for $ 225,710.  Bostonian paid an initial amount upon delivery and then paid the remainder in five monthly installments.  The terms and conditions of the contract provided the following language as to the right of ownership: “Right of Ownership – Under this Agreement, the SELLER [Fraco] shall remain and shall continue to remain the owner of the Equipment sold to the BUYER [Bostonian], the Parties agreeing that the ownership shall not be transferred neither [sic] at the drafting stage of the Agreement, nor upon delivery of the Equipment, but only after all sums due, as stated in each and every invoice to be issued by the SELLER, will have been paid in full to the SELLER.”   The terms and conditions of the sales contract also included provisions as to […]

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Posted by Massachusetts Legal Resources - September 26, 2013 at 4:05 pm

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