In Element Construction, LLC v. Dougherty, Lunar Agency, Inc. et al v. ProBuild Company et. al., the Philadelphia Court of Common Pleas examined the circumstance when joinder plaintiffs may seek contribution / indemnity from joinder defendants, where the parties did not “act together” in causing the alleged injury.

Element was a manager of a construction project that took place in Philadelphia. In order to procure insurance policies for the project, Element hired Lunar Agency, a brokerage firm of which Brian Dougherty was a shareholder. During the construction project, ProBuild, a subcontractor of Element, allegedly negligently crashed into a wall while operating a forklift. This impact resulted in a partial building collapse to the tune of approximately $3 million. After the incident, Element commenced this lawsuit. Element alleged that Dougherty and Lunar failed to timely notify the insurer of the accident which resulted in an almost complete denial of the claim on that basis. Subsequently, Lunar and Dougherty filed a joinder complaint against the allegedly negligent subcontractor, ProBuild. Lunar and Dougherty pleaded for contribution as a joint tortfeasor and common law indemnity.

In response, ProBuild filed preliminary objections asserting that it could not be a joint tortfeasor, because the alleged negligence leading to the construction accident had nothing in common with the alleged negligence of Lunar’s failure to timely notify the insurer. In other words, the alleged negligence of Lunar and the alleged negligence of ProBuild were from two separate and unrelated events.

The Court sustained the preliminary objections and agreed that ProBuild and Lunar “did not act together” in committing the wrong and also could not plausibly allege that their “independent actions united to cause a single injury”. This case illustrates the usefulness in filing preliminary objections as a joinder defendant if the alleged negligent acts do not arise from the same duty or act.  Thanks to Matthew Care for his contribution to this post.  Please email Vincent Terrasi with any questions.