When faced with a potential verdict against an uninsured construction manager, the plaintiff’s attorney tried to outflank the property owner with legal maneuvers to no avail. In Onda v. Ingegneri, a subcontractor’s employee was injured on a worksite while making a delivery. The worksite was a kitchen renovation project at an Inn. The owners had retained a construction manager for the large renovation project. However, that manager turned out to be uninsured.

On the eve of trial, the plaintiff’s attorney realized the very real potential that a verdict might be rendered against the construction manager but leave his client without remedy. Thus, he sought to pin liability on the owners under the theory of non-delegable duty to maintain the premises for business invitees that is normally placed on an owner or occupier of land.

To this end, the plaintiff sought to bar the owner from pursuing its cross-claim against the contractor. He also dismissed his claims against the contractor and then filed a motion to make a claim against the owners for negligent hiring of an uninsured contractor.

The problem with the plaintiff’s strategy was that generally, one who engages an independent contractor is not liable for that party’s negligence in the performance of the contract unless the owner retains control of the manner and means the work is performed, the contractor is incompetent, or the activity involved is a nuisance.

The court denied the plaintiff’s motions. First, the court recognized the owners’ right to pursue a cross-claim against their contractor. Second, the court rightly expressed concern that the motion to amend would entail presenting insurance information to the jury, something that is not permitted under our evidence rules due to potential for prejudice. Moreover, coming on the eve of trial, the court used its discretion to preclude a completely new theory against the defendants.

At trial, the jury placed no fault on the property owner and divided liability between the plaintiff (31%) and construction manager (69%). The appellate division affirmed.

See Onda v. Ingegneri, http://www.judiciary.state.nj.us/opinions/a5826-09.pdf

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