SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5272-15T4

THE ESTATE OF LUIS CARLOS TAVARES 

and PAULA PIRES, his wife, serving

as Administratrix Ad Prosequendum

of the ESTATE OF LUIS CARLOS TAVARES,

Plaintiff,

v.

LUCAS CONSTRUCTION GROUP, INC.,

FREDERIC R. HARRIS, INC., DMJM +

HARRIS, INC., DMJM HARRIS/AECOM,

and AECOM,

Defendants-Respondents,

and

COUNTY OF MIDDLESEX,

Defendant-Appellant,

and

v.

LIONEL LUCAS, ANTONIO LUCAS, 

CONSOLIDATED RAIL CORPORATION, 

TOWNSHIP OF WOODBRIDGE, and 

TRADEWINDS CONSTRUCTION, INC.,

Defendants.

__________________________________

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-5272-15T4

Argued May 8, 2018 – Decided June 20, 2018

Before Judges Yannotti, Carroll and Mawla.

On appeal from Superior Court of New Jersey, 

Law Division, Middlesex County, Docket No. L2713-11.

Jerald J. Howarth argued the cause for 

appellant (Howarth & Associates, LLC, 

attorneys; Jerald J. Howarth and Purnima D. 

Ramlakhan, on the briefs).

James G. Serritella argued the cause for 

respondent Lucas Construction Group, Inc. 

(Biancamano & DiStefano, PC, attorneys; James 

G. Serritella, on the brief).

William F. Waldron, Jr., argued the cause for 

respondents Frederic R. Harris, Inc., DMJM + 

Harris, Inc./AECOM and AECOM (Marshall, 

Dennehey, Warner, Coleman & Goggin, attorneys; 

William F. Waldron, Jr., and Patricia M. 

McDonagh, on the brief).

PER CURIAM

The County of Middlesex (County) appeals from various orders 

entered by the trial court, which held that the County was not 

entitled to contractual indemnification from defendants Lucas 

Construction Group, Inc. (Lucas), or Frederic R. Harris, Inc., 

DMJM + Harris, Inc., DMJM Harris/AECOM, and AECOM (collectively, 

AECOM) for attorney's fees it incurred in defending claims brought 

against it in an underlying lawsuit. We affirm.
3 A-5272-15T4

I.

This appeal arises from the following facts. Lucas entered 

into a contract with the County to provide "all labor, materials, 

and equipment" for a bridge replacement project in Avenel, New 

Jersey (the Lucas contract). The contract incorporated 

Supplementary Specifications and the New Jersey Department of 

Transportation (NJDOT) 2001 Standard Specifications for Road and 

Bridge Construction (NJDOT Specifications). The contract contained 

several indemnity provisions.

AECOM also entered into a contract with the County to provide 

professional engineering consulting services in connection with 

the bridge replacement project (the AECOM contract). These 

services required AECOM to provide a full-time inspector to monitor 

Lucas's work, ensure compliance with the plans and specifications 

for the project, and prepare and furnish daily reports. The County 

was required to provide its own project manager to oversee

operations at the project site as well. The AECOM contract also 

contained a contractual indemnity provision.

On August 11, 2009, Luis Carlos Tavares (Tavares) was fatally 

injured while working as a laborer for Lucas on the bridge 

replacement project. On April 17, 2013, Tavares's estate and his 

wife, the administrator of the estate (plaintiffs), filed an 

amended complaint naming Lucas, the County, and AECOM as 
4 A-5272-15T4

defendants. Lionel Lucas, Antonio Lucas, Consolidated Rail 

Corporation (Conrail), the Township of Woodbridge (Township), and 

Tradewinds Construction, Inc. (Tradewinds) were also named as 

defendants.

Plaintiffs alleged that as a result of the negligence of the 

County, Lucas, and AECOM, a 1500 pound steel plate separated from 

a Campbell Hook assembly and struck Tavares's head, causing his 

death. Plaintiffs also claimed several defendants, including 

Lucas, AECOM, and the County, were negligent in failing to inspect, 

maintain, repair, and supervise workplace equipment and 

components; provide a safe place to work; and establish, provide, 

and implement proper training. Plaintiffs further alleged the 

County, Lucas, and AECOM permitted unsafe practices at the 

workplace, violated accepted construction-site policies and 

procedures, and otherwise failed to fulfill contractual 

responsibilities regarding the workplace. 

Evidence obtained in discovery revealed that Lucas used

damaged construction equipment, including the Campbell Hook 

assembly, to lift the 1500 pound plate at the time Tavares was 

injured. The hoisting assembly that Lucas used to raise the subject 

plate included two hooks, which engaged into holes in the steel 

plate. The hooks lacked a safety pin to prevent the plate from 

dislodging. Antonio Lucas, who was operating the Caterpillar 
5 A-5272-15T4

excavator, which was moving the plate at the time of the incident, 

testified that he did not inspect the hooks before use.

AECOM assigned William J. Meister to act as field inspector 

for the project. At his deposition, Meister testified that on the 

day of the incident he was on vacation and not present at the work 

site. Meister claimed he advised Lucas, the County, and his 

superiors that he would be on vacation the week in which the 

incident occurred. Meister also acknowledged that AECOM was 

responsible for Lucas's progress, and "blatant" or "conspicuous" 

safety issues.

Ronald M. Sender, a supervising engineer for the County,

testified that it was his and the County's policy or procedure to 

ensure coverage if the resident engineer was absent from a work 

site. Sender said, "[It is] common practice that if someone is 

going on vacation, they say I won't be here, this person will be 

. . . doing the inspection and reporting to you." However, when 

asked who had responsibility to ensure that a substitute resident 

engineer was present, Sender stated "[n]o one at the [C]ounty 

would ensure [that]."

On April 25, 2014, the County filed a motion for summary 

judgment seeking dismissal of plaintiffs' complaint and all crossclaims against it, and motions for summary judgment against Lucas 

and AECOM for contractual indemnification. Conrail and the 
6 A-5272-15T4

Township filed motions for summary judgment, and Lucas, Antonio 

Lucas, and Lionel Lucas sought summary judgment on liability. In 

addition, Lucas and AECOM filed cross-motions for summary judgment 

on the County's claims against them for contractual 

indemnification.

On May 13, 2014, the motion judge dismissed the claims against 

Conrail, the Township, Antonio Lucas, and Lionel Lucas, and granted 

Lucas's motion for summary judgment on liability.

1 In addition, on

May 13, 2014, the judge heard oral argument on the County's motion 

for summary judgment on the claims asserted against it, which was 

denied by order of the same date. 

The judge determined that there was a genuine issue of 

material fact as to whether the County violated its own policy or 

practice in failing to oversee safety at the work site on the day 

of the accident. In so ruling, the judge stated:

Sender affirmed that it is . . . general 

practice to ensure that there was coverage [at 

the work site] if the resident engineer was 

away on vacation.

The engineer on site seems to have the 

responsibility, in this case with these 

 

1 Lucas obtained liability insurance through Penn National 

Insurance Company and initially provided a defense to the County;

however, the County's insurer, Mid-Continent/Great American 

Insurance Group, acknowledged that it had issued an Owner's and 

Contractor's Protective Policy to the County, and that this policy 

was primary. Howarth & Associates, LLC then assumed the defense 

of the County.
7 A-5272-15T4

contracts, to ensure that there are no blatant 

safety violations. [It is] up to a jury to 

decide whether failing to wear a helmet is a 

blatant safety violation, or lifting a heavy 

metal plate without prior notice . . . is a 

blatant safety violation, or utilizing the 

hooks that were utilized. 

. . . .

I am satisfied that a reasonable jury can 

conclude that the [C]ounty violated its 

practice of ensuring safety coverage by 

failing to make certain that a person was on 

site who could have evaluated the safety 

hazards.

The County filed a motion for reconsideration. The County 

argued that AECOM was not contractually responsible for safety at 

the work site, and as such, the County's duty to plaintiff could 

be no greater than AECOM's duty. The judge denied the motion.

The judge found that reconsideration was not warranted 

because the County had presented "no new material evidence for the 

[c]ourt to consider." The judge stated:

Here, the County may also be liable for 

failing in its exclusive duty of providing a 

replacement for a supervising engineer while 

he was away on vacation. I say "may" because 

it seems, to me, to be clear that that is a

question of fact and a question . . . for a 

fact-finder.

The language of the scope of work for 

professional services for this project, 

combined with the deposition of [Mr.] Sender, 

some of which was read into the record . . . 

raises an issue of fact as to whether 
8 A-5272-15T4

defendant should have provided a replacement 

engineer for Mr. Meister while he was absent. 

The County cannot eliminate all questions of 

fact relating to its responsibility, direct 

or indirect, in this matter. Because it cannot 

do so and because none of the material 

presented before the [c]ourt appears . . . to 

the [c]ourt to be new, the [c]ourt denies the 

motion . . . to reconsider its earlier ruling 

denying summary judgment. 

On June 6, 2014, the judge heard oral argument on the crossmotions by Lucas, AECOM, and the County for summary judgment on 

the indemnification claims. The judge stated he would issue a

written opinion on the matter; however, the judge did not issue 

an opinion. Instead, the judge filed various orders dated August 

14, 2014, which granted the County's cross-motions for summary 

judgment seeking indemnification from Lucas and AECOM, and ruled 

that Lucas and AECOM owed contractual indemnity to the County.

On September 2, 2014, AECOM's attorney sent a letter to the 

trial court requesting "additional action, clarification, and/or 

motion practice" with regard to the August 14, 2014, orders. On 

September 11, 2014, the judge acknowledged on the record that the 

orders issued on August 14, 2014, were entered in error. 

The judge further acknowledged that no decision on the 

County's motions on indemnification had been made, and there was 

no letter opinion accompanying the orders inadvertently filed on 

August 14, 2014. The judge entertained arguments from the County, 
9 A-5272-15T4

Lucas, and AECOM on the issue of indemnification, and by order,

dated September 15, 2014, and letter opinion, dated September 16, 

2014, the judge vacated the August 14, 2014 orders and denied the 

County's motions for summary judgment on the issue of 

indemnification.

In October 2014, plaintiffs settled their claims against 

AECOM and Tradewinds. Moreover, in November 2014, plaintiffs 

provided the County with a stipulation dismissing with prejudice 

plaintiffs' claims against the County. 

On January 20, 2015, AECOM filed a motion for summary judgment 

to dismiss the County's claims against it for indemnification. 

Lucas filed a cross-motion seeking similar relief. The County 

filed two cross-motions for summary judgment on indemnification 

as to Lucas and AECOM, respectively. 

On April 17, 2015, another Law Division judge heard oral 

argument on the four motions. By order dated June 24, 2015, the 

judge granted the motions by Lucas and AECOM, and denied the 

County's motions. The County subsequently filed a motion for 

reconsideration, which was heard on September 4, 2015. By order 

dated July 14, 2016, the judge denied the County's motion. This 

appeal followed. 

On appeal, the County argues: (1) the matter must be remanded 

as the County was entitled to a hearing to establish it was 
10 A-5272-15T4

negligence-free and could seek counsel fees pursuant to the 

indemnity provisions in the Lucas and AECOM agreements; (2) the 

July 14, 2016 order must be reversed because the trial court 

erroneously denied the County's motion for summary judgment on 

liability; (3) the County is entitled to attorney's fees under 

Kieffer v. Best Buy, 205 N.J. 213 (2011); (4) both Lucas and AECOM 

must indemnify the County pursuant to the terms of their respective 

contracts; (5) the County is entitled to attorney's fees from 

Lucas and AECOM on the theory of common law indemnification; and 

(6) Lucas owes the County contractual indemnity pursuant to Azurak 

v. Corporate Property Investors, 175 N.J. 110 (2003).

II.

Relying upon the court's decision in Central Motor Parts 

Corp. v. E.I. duPont deNemours & Co., 251 N.J. Super. 5 (App. Div. 

1991), the County first argues the trial court erroneously denied 

it the opportunity for a trial, plenary hearing, or "settlement 

proceeding" establishing that it had no liability to plaintiffs 

and therefore was entitled to indemnification by Lucas and AECOM. 

The County contends that where there is no trial or settlement 

proceeding establishing liability, the so-called "after-the-fact" 

approach requires the trial court to afford the County the 

opportunity to prove that it was "fault-free." We disagree. 
11 A-5272-15T4

The "after-the-fact" approach, first articulated in Central 

Motor, "permits an indemnitee to recover counsel fees if the 

indemnitee is adjudicated to be free from active wrongdoing 

regarding the plaintiff's injury, and has tendered the defense to 

the indemnitor at the start of the litigation." Mantilla v. NC 

Mall Assocs., 167 N.J. 262, 273 (2001) (citing Cent. Motor, 251 

N.J. Super. at 11). 

"[A]n indemnitee who defends exclusively against the acts of 

the indemnitor may recoup from the indemnitor the reasonable costs 

of its defense." Cent. Motor, 251 N.J. Super. at 10 (emphasis in 

original). "Costs incurred by a[n] [indemnitee] in defense of its 

own active negligence or independent warranties are not 

recoverable, but those costs incurred on defending claims on which 

the [indemnitee] is found only derivatively or vicariously liable 

are recoverable." Id. at 11.

The purpose of the "after-the-fact" approach is not to 

determine whether an indemnitee is ultimately "fault-free." Id.

at 10–12. Rather, it is for determining whether an indemnitee has 

defended against claims of its own independent fault or the fault 

of the indemnitor. Ibid. A settlement proceeding fixing liability 

is only necessary where the "indemnitee incurred legal costs 

defending its vicarious liabilities." Id. at 12–13. 
12 A-5272-15T4

Here, the record shows that at all times throughout this 

litigation, the County has solely been defending against 

plaintiffs' claims against the County for its own alleged acts of 

negligence. Plaintiffs did not claim that the County was only 

derivatively or vicariously liable for the alleged negligence of 

Lucas or AECOM. 

Thus, even if the County were adjudicated "fault-free" on the 

claims asserted against it for its own alleged independent acts 

of negligence, the County still would not be entitled to 

contractual indemnity from AECOM or Lucas for the attorney's fees 

incurred in defending against those claims. Accordingly, the trial 

court did not err by failing to conduct an evidentiary hearing to 

determine if the County was "fault-free." 

III.

Next, the County argues that the trial court erred by denying 

its initial motion for summary judgment on the claims plaintiffs

asserted against it in the amended complaint, and by thereafter 

denying its motion for reconsideration. Again, we disagree. 

Summary judgment must be granted if "there is no genuine 

issue as to any material fact challenged and that the moving party 

is entitled to a judgment or order as a matter of law." R. 4:46-

2(c). "An issue of fact is genuine only if, considering the burden 

of persuasion at trial, the evidence submitted by the parties on 
13 A-5272-15T4

the motion, together with all legitimate inferences therefrom 

favoring the non-moving party, would require submission of the 

issue to the trier of fact." Ibid.

In reviewing a trial court's decision to grant or deny a 

motion for summary judgment, we conduct a de novo review, using 

"the same standard as the trial court." Templo Fuente De Vida 

Corp. v. Nat'l Union Fire Ins. Co. of Pitt., 224 N.J. 189, 199 

(2016). We must determine whether there are substantial, genuinely 

disputed issues of fact, and not simply issues of an "immaterial 

or . . . insubstantial nature." Brill v. Guardian Life Ins. Co.

of Am., 142 N.J. 520, 540 (1995). The non-moving party cannot 

defeat a summary judgment motion "merely by pointing to any fact 

in dispute." Ibid.

Here, plaintiffs asserted claims against the County for its 

alleged negligence in failing to follow its own policies, 

procedures, and practices with regard to supervision of the 

worksite. Under its contract with AECOM, the County was required 

to provide its own project manager to oversee the operations at 

the work site, and AECOM was required to prepare and furnish daily 

reports to the County, creating an ongoing dialogue between Meister 

and Sender. 

The trial court correctly found that there was a genuine 

issue of material fact as to whether the County retained control 
14 A-5272-15T4

over the work site and whether the County provided the proper 

supervision of the work. Thus, the trial court did not err by 

denying the County's motion for summary judgment on the claims 

plaintiffs asserted against the County in their amended complaint.

Moreover, the County has failed to establish that the trial 

court erred by denying its motion for reconsideration of the order 

denying summary judgment. A motion for reconsideration is 

committed to the sound discretion of the court, which should be 

"exercised in the interest of justice." Cummings v. Bahr, 295 N.J. 

Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 

N.J. Super. 392, 401 (Ch. Div. 1990)). 

Reconsideration is appropriate only when a court has rendered 

a decision "based upon a palpably incorrect or irrational basis," 

or failed to consider or "appreciate the significance of probative, 

competent evidence." Ibid. (quoting D'Atria, 242 N.J. Super. at 

401-02). Here, the County failed to show that in denying summary 

judgment, the court had ruled on an incorrect or irrational basis, 

or failed to appreciate probative and competent evidence. 

Therefore, the court did not err by denying the County's motion 

for reconsideration. 

IV.

The County argues the trial court erroneously relied upon the 

"risk-shifting analysis" of Azurak and Mantilla, rather than the 
15 A-5272-15T4

"after-the-fact" approach enunciated in Kieffer and Central Motor

for "fault-free" indemnitees that seek "counsel fees only." The 

County therefore argues that the trial court erred by denying its 

motion for summary judgment and granting the motions by Lucas and 

AECOM for summary judgment on the issue of indemnification. 

Central Motor established that the trial court should review 

the record to determine whether an indemnitee has incurred costs 

defending against claims against the indemnitor or claims against 

the indemnitee. 251 N.J. Super. at 11. "Central Motor expresses 

the common-law principle that 'an indemnitee who has defended 

against allegations of its independent fault may not recover its 

[defense] costs.'" Mantilla, 167 N.J. at 272 (quoting Cent. Motor, 

N.J. Super. at 10). 

In Mantilla, the Court held that an indemnitee cannot recover 

legal expenses incurred in defending itself against independent 

claims based upon its own negligence unless the parties explicitly 

agree otherwise. Id. at 275. In that case, a patron brought a 

negligence claim against the owner of a shopping mall and its 

janitorial-services contractor. Id. at 264. The case went to trial 

and the jury returned a verdict finding the owner forty-percent

at fault, the contractor fifty-percent at fault, and the plaintiff

ten-percent at fault. Id. at 265. The owner then sought 

indemnification from the janitorial-services contractor. Ibid.
16 A-5272-15T4

The Court held, however, that "absent explicit contractual 

language to the contrary, an indemnitee who has defended against 

allegations of its own independent fault may not recover the costs 

of its defense from an indemnitor." Id. at 275. In addition, as 

previously stated, the Court adopted the "after-the-fact" approach 

previously articulated in Central Motor. Id. at 273 (citing Central

Motor, 251 N.J. Super. at 10–11).

In Azurak, the Court reaffirmed the principles enunciated in 

Mantilla, and held that a "broad form" indemnification clause, 

which attempted "to include an indemnitee's negligence within an 

indemnification agreement without explicitly referring to the 

indemnitee's 'negligence' or 'fault,' . . . is no longer good 

law." 175 N.J. at 112. The Court stated that Mantilla reaffirmed 

the "'bright line' rule requiring 'explicit language' that 

indemnification and defense shall include the indemnitee's own 

negligence." Ibid. (quoting Azurak v. Corp. Prop. Inv'rs, 347 N.J. 

Super. 516, 523 (App. Div. 2002)).

Most recently, in Kieffer, the Court considered the terms of 

an indemnification agreement executed between a property owner and 

a cleaning contractor, and another indemnification agreement 

between the cleaning contractor and a sub-contractor. 205 N.J. at 

216. The trial on the plaintiff's negligence claims resulted in a 

no-cause verdict for all three defendants. Ibid. The trial court 
17 A-5272-15T4

held, however, that the sub-contractor must indemnify the 

contractor and, in turn, the property owner. Id. at 220. 

The Court held that the trial court erred by requiring the 

sub-contractor to indemnify the contractor and, ultimately, the 

property owner. Id. at 217. The Court determined that the subcontract did not require the sub-contractor to indemnify the

contractor and the property owner for their legal costs in the 

absence of a determination that plaintiff's injuries were caused 

by the sub-contractor's "negligence, omission, or conduct." Ibid.

The trial court never made a finding of negligence, and therefore, 

the sub-contractor was not contractually responsible for paying 

the defense costs of the property owner and contractor. Id. at 

225. 

In this case, the County argues that it is not seeking 

indemnification for its own negligence, but rather, that it is 

only seeking attorney's fees based on the language of the contract. 

The County further argues that Kieffer applies in this case because 

it has essentially been found to be "fault-free." Again, we 

disagree.

As stated previously, plaintiffs' amended complaint set forth 

independent claims of negligence against the County arising from 

the County's own alleged acts of negligence, and the County moved 

for summary judgment to dismiss these claims. The trial court 
18 A-5272-15T4

found, however, that there were genuine issues of material fact 

regarding the County's potential liability for its own independent

acts of negligence.

Moreover, in the amended complaint, plaintiffs did not assert 

that the County was derivatively or vicariously liable for the 

alleged negligence of Lucas or AECOM. The record shows that

throughout the litigation, the County has been defending against 

allegations of its own negligence. Therefore, the County's 

reliance on Kieffer is misplaced.

We conclude the trial court engaged in the proper analysis 

in reviewing the County's motions for summary judgment seeking

contractual indemnification from Lucas and AECOM, and correctly

decided as a matter of law that the County is not entitled to 

reimbursement of its attorney's fees. The court correctly 

determined that the County incurred the fees defending against 

claims of its own independent negligence and not defending claims 

of derivative or vicarious liability.

Therefore, the trial court did not err by granting Lucas's 

and AECOM's motions for summary judgment on the County's claims 

for indemnification, and denying the County's motions for summary 

judgment seeking indemnification from Lucas and AECOM. 
19 A-5272-15T4

V.

The County further argues that it is entitled to 

indemnification for its attorney's fees pursuant to its agreements 

with Lucas and AECOM. 

The interpretation of a contract is a legal question, which 

is reviewed de novo by this court, and "[a] trial court's 

interpretation of the law and the legal consequences that flow 

from established facts are not entitled to any special deference." 

Kieffer, 205 N.J. at 222–223 (quoting Manalapan Realty, LP v. Twp. 

Comm., 140 N.J. 366, 378 (1995)). Therefore, an appellate court

must "look at the contract with fresh eyes." Id. at 223. 

"The objective in construing a contractual indemnity 

provision is the same as in construing any other part of a contract 

– it is to determine the intent of the parties." Ibid. (citing 

Mantilla, 167 N.J. at 272). "The judicial task is simply 

interpretative; it is not to rewrite a contract for the parties 

better than or different from the one they wrote for themselves."

Ibid. The court must give contractual terms "their plain and 

ordinary meaning." Ibid. (quoting M.J. Paquet, Inc. v. N.J. Dep't 

of Transp., 171 N.J. 378, 396 (2002)).

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 
20 A-5272-15T4

unequivocal terms" in the agreement. Ramos v. Browning Ferris 

Indus., Inc., 103 N.J. 177, 191 (1986) (citing Longi v. RaymondCommerce Corp., 34 N.J. Super. 593, 603 (App. Div. 1955)).

"A party ordinarily is responsible for its own negligence, 

and shifting liability to an indemnitor must be accomplished only 

through express and unequivocal language." Kieffer, 205 N.J. at 

224. "[A]bsent statutory or judicial authority or express 

contractual language to the contrary, each party is responsible 

for its own attorney's fees." Ibid. Moreover, if the meaning of 

an indemnity provision in a contract is ambiguous, the provision 

should be "strictly construed against the indemnitee." Id. at 223 

(quoting Mantilla, 167 N.J. at 272).

A. The Lucas Contract

The County relies upon three paragraphs in the Lucas contract 

to support its claim for contractual indemnity. The County first 

relies on paragraph 107.22 of the Supplementary Specifications, 

which provides:

The contractor shall save, protect, indemnify 

and hold harmless . . . [Conrail], [the 

County], its employees and/or agents from any 

and all injuries or claims for injuries or 

damages to persons or property caused by the 

Contractor or its employees, agents and/or 

subcontractors in undertaking the work 

contemplated by these bid specifications. The 

indemnification/hold harmless provided to the 

County hereunder shall survive the completion 
21 A-5272-15T4

of the work and final acceptance of the 

project by the Board of Chosen Freeholders.

Next, the County cites the "Sanitary, Health and Safety 

Provisions," of the NJDOT Specifications, which were incorporated 

by reference in the contract. Under subsection 107.10(B)(1)(b) of 

the NJDOT Specifications, "[t]he Contractor is solely responsible 

for creating, implementing, and monitoring [a] [Safety] Program." 

Further, paragraph 107.10(B)(2) states that

[t]he Contractor is solely responsible for all 

aspects of the [p]rogram including, but not 

limited to, the development, revision, 

implementation, monitoring, and updating of 

the [p]rogram. Pursuant to Subsection 107.22, 

the [c]ontractor shall defend, indemnify, and 

save harmless the [County] from any and all 

liability from any actions arising directly 

or indirectly or alleged to arise from the 

[p]rogram. 

In addition, the County relies upon subsection 107.22(2), 

"Risks Assumed by the Contractor," of the NJDOT Specifications, 

which provides:

The [c]ontractor shall bear the risk of 

claims, just or unjust, by third persons made 

against the [c]ontractor or the [County], on 

account of injuries (including wrongful 

death), loss or damage of any kind whatsoever 

arising or alleged to arise out of or in 

connection with the performance with the 

[w]ork. The risk of claims, whether or not 

actually caused by or resulting from the 

performance of the [w]ork or out of or in 

connection with the [c]ontractor's operations 

or presence at or in the vicinity of the 

construction site or [County] premises, 
22 A-5272-15T4

whether such claims are made and whether such 

injuries, loss, and damages are sustained, 

applies at any time both before and after 

[a]cceptance. 

However, the indemnification language contained in these

three provisions of the Lucas contract falls short of the explicit, 

"bright-line" contractual language required for indemnification 

of an indemnitee's own alleged acts of negligence. Paragraph 107.22 

of the Supplementary Specifications does not mention the County's 

negligence. Rather, paragraph 107.22 states that Lucas shall 

indemnify the County from any and all injuries, claims, injuries, 

or damages to persons or property caused by Lucas's own negligence. 

Subsection 107.10 of the NJDOT Specifications also does not 

mention the County's negligence. Instead, this provision requires 

Lucas to implement a safety program, states that Lucas is solely 

responsible for all aspects of the program, and directs Lucas to 

"defend, indemnify, and save harmless the [County] from any and 

all liability from any actions arising directly or indirectly or 

alleged to arise from the [p]rogram" pursuant to subsection 107.22. 

The agreement does not expressly state that Lucas shall indemnify 

the County for any actions that may arise from its own negligence 

with regard to the program. 

Furthermore, subsection 107.22 of the NJDOT Specifications 

does not clearly and unequivocally impose on Lucas an obligation 
23 A-5272-15T4

to indemnify the County for its own negligence. Indeed, the 

indemnification language in subsection 107.22 is similar to the 

indemnity provision at issue in Mantilla. 167 N.J. at 266.

That provision stated, "Contractor shall indemnify and save 

Owner harmless from any and all loss, cost, expense, damages, 

claims and liability for bodily injury, death or property damage 

occurring in and about the Shopping Center as a result of the work 

performed and materials and equipment installed or furnished by 

Contractor hereunder." Ibid. As the Mantilla Court held, this 

language does not provide for indemnification for claims arising 

out of the indemnitee's own negligence. Id. at 276. The same 

conclusion applies in this case. 

In addition, there is no ambiguity in the contract on the 

issue of whether Lucas must indemnify the County for the County's 

own negligence. Even if the agreement was ambiguous, any ambiguity 

on the issue of indemnification must be "strictly construed against 

the indemnitee." Kieffer, 205 N.J. at 223 (quoting Mantilla, 167 

N.J. at 272).

B. The AECOM Contract

In support of its claim for indemnification against AECOM, 

the County relies upon paragraph 120 of the AECOM contract, 

"Responsibility for Claims and Liability," which states in 

pertinent part that AECOM
24 A-5272-15T4

shall indemnify and save harmless . . . [the 

County], its officers, agents and employees 

from and against any and all claims, suits, 

actions, damages, losses, demands and costs 

of every name and description resulting from 

or claimed to result from any negligent act, 

error or omission of [AECOM] and/or any of its 

Subconsultant(s)/Subcontractor(s) in the 

performance of services or resulting from the 

non-performance of the [c]onsultant and/or any 

of its Subconsultant(s)/Subcontractor(s) of 

any of the covenants and specifications of 

this [p]roposal, including any supplements 

thereto, and such [indemnification] shall not 

be limited by reason of any insurance 

coverage. The [c]onsultant shall provide all 

professional services required by the County 

in defending all claims against the County 

which relate in any way to alleged errors, 

omissions or alleged failure to supervise by 

the [c]onsultant arising out of this contract 

without additional compensation. The County 

shall recover from the [c]onsultant its 

attorney's fees, expert witness costs, cost 

of consultant(s) necessary for evaluation of 

the project, and any other costs incurred.

This provision of the AECOM contract does not, however,

include language that meets the "bright-line" standard required 

to compel indemnification for an indemnitee's own alleged acts of 

negligence. The contract does not contain any reference to the 

County's negligence. Rather, the indemnification clause expressly 

focuses on AECOM's negligence and only requires AECOM to indemnify 

the County for any claims or damages arising from AECOM's

negligence.
25 A-5272-15T4

Moreover, there is no ambiguity in the contract with regard 

to indemnification of the County for its own negligence. Even if

the indemnification clauses were ambiguous, any ambiguity must be 

"strictly construed against the indemnitee." Kieffer, 205 N.J. at 

223 (quoting Mantilla, 167 N.J. at 272).

We therefore conclude the County is not entitled to 

contractual indemnification for the attorney's fees the County 

incurred in defending the claims asserted against the County based 

on its own negligence. 

VI.

The County also argues that it is entitled to common law 

indemnification from Lucas and AECOM for the attorney's fees it 

incurred in this lawsuit. Again, we disagree.

In Central Motor, we held that "[a] common-law indemnitee,

forced to defend claims for which its liability is only vicarious, 

is entitled not only to the cost of any judgment or reasonable 

settlement, but also to costs of defense occasioned by the 

indemnitor's fault." 251 N.J. Super. at 9. However, "the right of 

indemnity is granted only to those whose liability is secondary 

and not primary, i.e., whose negligence is not morally culpable 

but is merely constructive, technical, imputed or vicarious." Pub. 

Serv. Elec. & Gas Co. v. Waldroup, 38 N.J. Super. 419, 432 (App. 

Div. 1955). Moreover, common law indemnity is applicable only in 
26 A-5272-15T4

the absence of an express agreement between parties. Promaulayko 

v. Johns Manville Sales Corp., 116 N.J. 505, 511 (1989).

Here, the Lucas and AECOM contracts establish the 

relationships between the parties with regard to indemnification. 

As we have determined, the County is not entitled to 

indemnification under either contract for the costs it incurred 

in defending claims asserted against the County for its own 

negligence. 

Furthermore, the record does not support the County's 

assertion that it incurred the legal costs defending claims of

derivative or vicarious liability. Plaintiffs did not assert any 

claims against the County for such liability. Therefore, the County 

is not entitled to common law indemnification from Lucas or AECOM 

for reimbursement of the counsel fees it incurred in this lawsuit.

Finally, the County argues that under Azurak, Lucas owed it

contractual indemnity for the County's own negligence. We find the 

County's arguments on this issue lack sufficient merit to warrant 

discussion. R. 2:11-3(e)(1)(E). 

Affirmed.