Plaintiff Matthew Domenick tripped and fell while playing a softball game at Johnson Park in Piscataway. As sponsor of the softball league, defendant Brian Melnick obtained a permit from the defendant County of Middlesex. Melnick signed the County’s rules and regulations which contained a hold harmless agreement, requiring indemnification for claims arising from the conduct of activities for which the application was being made. The issue in Domenick v. County of Middlesex, 2021 N.J. Super. Unpub. LEXIS 722 (App. Div. April 26, 2021) was whether the County was entitled to indemnification for this accident.
The claim against the County was that it was negligent in the preparation and maintenance of the softball field, causing the plaintiff’s injuries. In turn, the County filed a Third-Party Complaint against the sports league, BAM Sports (Melnick’s company)(“BAM”), and its insurance company Philadelphia Indemnity Insurance.
Just before discovery closed, the County filed for a summary judgment against BAM, claiming that it was entitled to indemnification. BAM cross-moved for summary judgment, claiming that the County was not entitled to indemnification because the indemnity clause failed to reference “the County’s own fault or negligence.”
Based upon the well settled law in New Jersey, to bring a negligent indemnitee within an indemnification agreement, the agreement must specifically reference the negligence or fault of the indemnitee. The trial court found that the County’s indemnification provision clearly lacked any explicit reference to indemnification in the case of a suit for the County’s own negligence. Accordingly, the trial court denied the County’s motion but granted BAM’s motion to dismiss the case.
The County appealed the motion judge’s ruling, claiming that the judge erroneously applied the governing law and “overlooked the party’s true intent” behind the indemnification clause. The Appellate Division noted that “as a general rule an indemnity ‘contract will not be construed to indemnify the indemnitee against losses resulting from its own negligence unless such an intention is expressed in unequivocal terms’ in the agreement.” In reviewing the indemnification clause in the County’s indemnification provision, the Appellate Division found that it fell “far short” of the explicit language required under New Jersey case law to provide indemnification for the County for its own negligence. Thus, because the indemnification provision lacked any reference whatsoever to the County’s own negligence, the Appellate Division agreed that BAM was not required to defend or indemnify the County. Accordingly, the Appellate Division affirmed the trial court’s decision that the County of Middlesex was not entitled to indemnification from the third party defendant BAM for the plaintiff’s accident.
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