Construction litigation is rife with complexity, usually involving many different parties, including the general contractor, subcontractors, suppliers and installers, and independent contractors. A plaintiff bringing a claim will want to make sure it has all potentially liable entities involved in the litigation. This means that often a contractor or supplier is named as a defendant, despite having little involvement in the project, a tenuous connection to the loss, and negligible exposure.
The aim of legal counsel in representing such a defendant is to extract it from the litigation as efficiently and expediently as possible. The most common ways to do this are convincing the plaintiff that the defendant in question has no justifiable role in the case or to file for summary judgment. However, plaintiffs’ lawyers are often not inclined to dismiss any parties early in the litigation; and summary judgment usually requires waiting for the discovery process to be completed.
In our experience, there is another principle of law that is underutilized, which can be raised and applied proactively, much earlier in the litigation process, specifically, at the responsive filing stage, through a motion to dismiss. The principle is succinctly stated in case law: “[t]he general rule is that an individual or corporation is not liable for injuries resulting from the work of an independent contractor.” Washington Metro. Area Transit Auth. v. L’Enfant Plaza Properties, Inc., 448 A.2d 864, 868 (D.C. 1982). The same principle is recognized in Maryland law. Davis v. Toyota Motor Credit Corp., 251 F. Supp. 3d 925 (D. Md. 2017); Surry Lumber Co. v. Zissett, 150 Md. 494 (1926)).
An example of the application of this legal principle is in Washington Air Compressor Rental Co. v. National Union Insurance Co., 165 A.2d 482 (D.C. 1960). The case concerned homeowners who allegedly suffered damage to their respective homes caused by blasting operations undertaken for the installation of a sewer line for the District of Columbia, through its Department of Safety and Engineering. Washington Air Compressor was a subcontractor on the project, in charge of the blasting operations. The homeowners received payments from their own insurance carriers for the damage, who then, subsequently, filed a subrogation claim.
The Court ruled in favor of the homeowners’ insurer against both Washington Air Compressor and the general contractor of the project, Martin & Gass. On appeal, though, the judgment against the general contractor was reversed by the Municipal Court of Appeals. The appellate opinion relied on and restated the above-referenced rule of law: ““[w]e do not believe, however, that the judgment against appellant Martin & Gass can be allowed to stand. It is the general rule that an independent contractor is not ordinarily liable for the negligent acts of his subcontractor.”
This principle of law is not a silver bullet, and various exceptions have developed over the years. Nonetheless, it remains a viable and effective tool in the arsenal of a contractor or subcontractor who is brought into a multi-party litigation for the alleged actions or omissions of its lower-tier, independent contractor.
At Ferguson, Schetelich and Ballew, we have had success in utilizing this principle of law at the motion to dismiss stage to get our clients dismissed from litigation. We maintain an active construction litigation practice throughout Maryland and in the District of Columbia.