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COMMONWEALTH OF MASSACHUSETTS
BRISTOL, SS. SUPERIOR COURT
CIVIL ACTION No. 16-00923
JOSE F. ROCHA and
EVANGELINA ROCHA,
Plaintiffs,
v.
BRISTOL, SS SUPERIOR COURT
WALSH CONSTRUCTION CO., FILED
Defendant. FEB 05 2018
y. MARC J. SANTOS, ESQ.
CLERK/MAGISTRATE
LM HEAVY CIVIL CONSTRUCTION, LLC :
Third-Party Defendant
DEFENDANT WALSH CONSTRUCTION COMPANY’S THIRD PARTY COMPLAINT
AGAINST LM HEAVY CIVIL CONSTRUCTION, LLC
The Defendant Walsh Construction Company (“Walsh” or “Defendant/Third-Party
Plaintiff’), by and through undersigned counsel, hereby alleges as follow:
PARTIES
1. Upon information and belief the Plaintiff, Jose Rocha resides at 28 Maryland Ave,
Somerset, MA.
2. Upon information and belief the Plaintiff, Evangelina Rocha resides at 28 Maryland
Ave, Somerset, MA.
3. The Defendant/Third-Party Plaintiff, Walsh Construction Company is a foreign
corporation, incorporated in Illinois, with a principal place of business at 929 West Adams
Street, Chicago, Illinois.
1261915v.14. Upon information and belief the Third Party Defendant, LM Heavy Civil
Construction, LLC (“LMH”) is a Massachusetts corporation with a principal place of business at
100 Hancock St., Suite 901, Quincy, MA 02171.
FACTS
5. The Plaintiffs, Jose Rocha and Evangelina Rocha (“the Plaintiffs”), filed a complaint
against Walsh in Bristol Superior Court, regarding an alleged incident that occurred on or about
October 1, 2013. A copy of the Plaintiff's Complaint is attached as Exhibit 1.
6. The Plaintiffs allege that on the date of the alleged accident, Jose Rocha was working
in the course and scope of his employment for a subcontractor on a construction site when he
was struck by a vehicle and fell into a trench.
7. The Plaintiffs allege that Jose Rocha sustained personal injuries as a result of the
accident.
8. Evangelina Rocha is married to Jose Rocha and alleges loss of consortium with
respect the subject accident.
9. The Plaintiffs asserted negligence against Walsh alleging that Walsh, as the general
contractor for the construction project where the alleged accident occurred was negligent in
failing to maintain a safe workplace.
10. At the time of the alleged accident, the Plaintiff was an employee of LMH.
11. The individual driving the vehicle that allegedly struck the Plaintiff was also an
employee of LMH.
12. At the time of the alleged accident, LMH was acting as a subcontractor for the
construction project pursuant to a subcontract with Walsh (“the Subcontract”).
13. The Subcontract states in Article 9 section 1 titled “Indemnification” that, “[t]o the
fullest extent permitted by law, Subcontractor shall indemnify, defend...and save harmless ...
2
1261915v.1Contractor... from and against any'and all suits, actions, legal or administrative proceedings,
claims... which are in any manner directly or indirectly caused, occasioned or contributed to in
whole or in part, or claimed to be caused, occasioned, or contributed to, in whole or in part,
through any act, omission, fault or negligence whether active or passive of Subcontractor, or
anyone acting under its direction, control, or on its behalf, or for which it is legally responsible,
in connection with or incident to the Subcontractor’s Work or arising out of any failure of
Subcontractor to perform any of the terms and conditions of this Subcontract...”
14. The Subcontract in Article 10 also required LMH to maintain Commercial General
Liability Insurance with respect to its work at the Project and to name Walsh as an Additional
Insured on its policy.
15. Accordingly, Walsh is entitled to defense and indemnification from LMH with
respect to the Plaintiffs’ claims in this matter.
16. Walsh tendered its demand for defense and indemnity to LMH pursuant to the
Subcontract.
17. To date, LMH has not accepted the demand to defend and indemnify Walsh in this
action.
COUNT I - BREACH OF CONTRACT
18. The Defendant/Third-Party Plaintiff repeats and incorporates by reference herein each
of the allegations contained in the preceding paragraphs of this Third-Party Complaint.
19. Pursuant to the Subcontract between Walsh and LMH, LMH is required to defend,
indemnify and hold harmless Walsh with respect to the Plaintiffs’ claims.
20. The Subcontract further required LMH to name Walsh as an Additional Insured on its
Commercial General Liability policy.
1261915v.121. Walsh tendered its demand for defense and indemnity to LMH pursuant to the
Subcontract. LMH has not accepted the demand to defend and indemnify Walsh in this action
22. LMH has breached its express contractual obligations under the Subcontract,
including by failing to hold harmless, defend and indemnify Walsh in this action causing Walsh
to suffer damages.
WHEREFORE, the Defendant/Third-Party Plaintiff demands judgment against the Third-
Party Defendant, together with interest, costs, and attorneys’ fees incurred in defending against
the Plaintiffs’ action and bringing the Third-Party Complaint, and award such other relief as
justice and equity may require.
COUNT II - CONTRACTUAL INDEMNIFICATION
23. The Defendant/T hird-Party Plaintiff repeats and incorporates by reference herein each
of the allegations contained in the preceding paragraphs of this Third-Party Complaint.
24. Pursuant to the Subcontract between Walsh and LMH, LMH is required to defend,
indemnify and hold harmless, Walsh with respect to the Plaintiffs’ claims.
25. LMH is responsible for fees incurred in defending against the Plaintiffs’ claims in this
matter pursuant to the terms of the Subcontract.
26. If Walsh is found liable to the Plaintiffs, which Walsh expressly denies, then LMH is
expressly obligated to indemnify Walsh for any judgment rendered against Walsh, pursuant to
the express terms of the Subcontract.
WHEREFORE, the Defendant/Third-Party Plaintiff demands judgment against the Third-
Party Defendant, together with interest, costs, and attorneys fees incurred by defending against
the Plaintiffs’ action and bringing the Third-Party Complaint, and award such other relief as
justice and equity may require.
1261915v.1JURY DEMAND
DEFENDANT/THIRD-PARTY PLAINTIFF DEMANDS A TRIAL BY JURY ON ALL CLAIMS SO TRIABLE.
1261915v.1
Respectfully Submitted,
Defendant,
Walsh Construction Company,
By its attorneys,
wl
Christiye A. Knipper, BBO#652638
JasonW. Canne, BBO#688275
WILSON, ELSER, MOSKOWITZ,
EDELMAN
& DICKER LLP
260 Franklin Street, 14th Floor
Boston, MA 02110-3112
(617) 422-5300
Christine.knipper@wilsonelser.com
Jason.canne@wilsonelser.comCERTIFICATE OF SERVICE
I do hereby certify that on this 2nd day of February 2018, I served a true copy of the
foregoing document on the following by first class mail, postage prepaid:
Nicole M. McDonald, Esq.
McDonald Law LLC
139 South Main Street, Suite 401
Fall River, MA 02721
wee
Jason W. Canne
1261915v.1
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3 COMMONWEALTH OF MASSACHUSETTS BRISTOL, SS. SUPERIOR COURT CIVIL ACTION No. 16-00923 JOSE F. ROCHA and EVANGELINA ROCHA, Plaintiffs, v. BRISTOL, SS SUPERIOR COURT WALSH CONSTRUCTION CO., FILED Defendant. FEB 05 2018 y. MARC J. SANTOS, ESQ. CLERK/MAGISTRATE LM HEAVY CIVIL CONSTRUCTION, LLC : Third-Party Defendant DEFENDANT WALSH CONSTRUCTION COMPANY’S THIRD PARTY COMPLAINT AGAINST LM HEAVY CIVIL CONSTRUCTION, LLC The Defendant Walsh Construction Company (“Walsh” or “Defendant/Third-Party Plaintiff’), by and through undersigned counsel, hereby alleges as follow: PARTIES 1. Upon information and belief the Plaintiff, Jose Rocha resides at 28 Maryland Ave, Somerset, MA. 2. Upon information and belief the Plaintiff, Evangelina Rocha resides at 28 Maryland Ave, Somerset, MA. 3. The Defendant/Third-Party Plaintiff, Walsh Construction Company is a foreign corporation, incorporated in Illinois, with a principal place of business at 929 West Adams Street, Chicago, Illinois. 1261915v.14. Upon information and belief the Third Party Defendant, LM Heavy Civil Construction, LLC (“LMH”) is a Massachusetts corporation with a principal place of business at 100 Hancock St., Suite 901, Quincy, MA 02171. FACTS 5. The Plaintiffs, Jose Rocha and Evangelina Rocha (“the Plaintiffs”), filed a complaint against Walsh in Bristol Superior Court, regarding an alleged incident that occurred on or about October 1, 2013. A copy of the Plaintiff's Complaint is attached as Exhibit 1. 6. The Plaintiffs allege that on the date of the alleged accident, Jose Rocha was working in the course and scope of his employment for a subcontractor on a construction site when he was struck by a vehicle and fell into a trench. 7. The Plaintiffs allege that Jose Rocha sustained personal injuries as a result of the accident. 8. Evangelina Rocha is married to Jose Rocha and alleges loss of consortium with respect the subject accident. 9. The Plaintiffs asserted negligence against Walsh alleging that Walsh, as the general contractor for the construction project where the alleged accident occurred was negligent in failing to maintain a safe workplace. 10. At the time of the alleged accident, the Plaintiff was an employee of LMH. 11. The individual driving the vehicle that allegedly struck the Plaintiff was also an employee of LMH. 12. At the time of the alleged accident, LMH was acting as a subcontractor for the construction project pursuant to a subcontract with Walsh (“the Subcontract”). 13. The Subcontract states in Article 9 section 1 titled “Indemnification” that, “[t]o the fullest extent permitted by law, Subcontractor shall indemnify, defend...and save harmless ... 2 1261915v.1Contractor... from and against any'and all suits, actions, legal or administrative proceedings, claims... which are in any manner directly or indirectly caused, occasioned or contributed to in whole or in part, or claimed to be caused, occasioned, or contributed to, in whole or in part, through any act, omission, fault or negligence whether active or passive of Subcontractor, or anyone acting under its direction, control, or on its behalf, or for which it is legally responsible, in connection with or incident to the Subcontractor’s Work or arising out of any failure of Subcontractor to perform any of the terms and conditions of this Subcontract...” 14. The Subcontract in Article 10 also required LMH to maintain Commercial General Liability Insurance with respect to its work at the Project and to name Walsh as an Additional Insured on its policy. 15. Accordingly, Walsh is entitled to defense and indemnification from LMH with respect to the Plaintiffs’ claims in this matter. 16. Walsh tendered its demand for defense and indemnity to LMH pursuant to the Subcontract. 17. To date, LMH has not accepted the demand to defend and indemnify Walsh in this action. COUNT I - BREACH OF CONTRACT 18. The Defendant/Third-Party Plaintiff repeats and incorporates by reference herein each of the allegations contained in the preceding paragraphs of this Third-Party Complaint. 19. Pursuant to the Subcontract between Walsh and LMH, LMH is required to defend, indemnify and hold harmless Walsh with respect to the Plaintiffs’ claims. 20. The Subcontract further required LMH to name Walsh as an Additional Insured on its Commercial General Liability policy. 1261915v.121. Walsh tendered its demand for defense and indemnity to LMH pursuant to the Subcontract. LMH has not accepted the demand to defend and indemnify Walsh in this action 22. LMH has breached its express contractual obligations under the Subcontract, including by failing to hold harmless, defend and indemnify Walsh in this action causing Walsh to suffer damages. WHEREFORE, the Defendant/Third-Party Plaintiff demands judgment against the Third- Party Defendant, together with interest, costs, and attorneys’ fees incurred in defending against the Plaintiffs’ action and bringing the Third-Party Complaint, and award such other relief as justice and equity may require. COUNT II - CONTRACTUAL INDEMNIFICATION 23. The Defendant/T hird-Party Plaintiff repeats and incorporates by reference herein each of the allegations contained in the preceding paragraphs of this Third-Party Complaint. 24. Pursuant to the Subcontract between Walsh and LMH, LMH is required to defend, indemnify and hold harmless, Walsh with respect to the Plaintiffs’ claims. 25. LMH is responsible for fees incurred in defending against the Plaintiffs’ claims in this matter pursuant to the terms of the Subcontract. 26. If Walsh is found liable to the Plaintiffs, which Walsh expressly denies, then LMH is expressly obligated to indemnify Walsh for any judgment rendered against Walsh, pursuant to the express terms of the Subcontract. WHEREFORE, the Defendant/Third-Party Plaintiff demands judgment against the Third- Party Defendant, together with interest, costs, and attorneys fees incurred by defending against the Plaintiffs’ action and bringing the Third-Party Complaint, and award such other relief as justice and equity may require. 1261915v.1JURY DEMAND DEFENDANT/THIRD-PARTY PLAINTIFF DEMANDS A TRIAL BY JURY ON ALL CLAIMS SO TRIABLE. 1261915v.1 Respectfully Submitted, Defendant, Walsh Construction Company, By its attorneys, wl Christiye A. Knipper, BBO#652638 JasonW. Canne, BBO#688275 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 260 Franklin Street, 14th Floor Boston, MA 02110-3112 (617) 422-5300 Christine.knipper@wilsonelser.com Jason.canne@wilsonelser.comCERTIFICATE OF SERVICE I do hereby certify that on this 2nd day of February 2018, I served a true copy of the foregoing document on the following by first class mail, postage prepaid: Nicole M. McDonald, Esq. McDonald Law LLC 139 South Main Street, Suite 401 Fall River, MA 02721 wee Jason W. Canne 1261915v.1