There are often many entities potentially at fault for construction accidents. As a result, defendants often seek to join additional defendants that may not have been sued in order to reduce their liability.  

Joinder is a great strategy for limiting liability, but care must be taken that those sought to be joined actually share some part in causing a single injury.

In Element Constr., LLC v. Dougherty, the Philadelphia Court of Common Pleas addressed an interesting joinder situation.  Element Construction, LLC was the manager of a renovation project on a building owned by 5th Street, LLC. Element and 5th Street retained Lunar Agency, Inc., an insurance brokerage company, to obtain the necessary insurance policies and manage any claims. While working on the renovation project, a subcontractor allegedly crashed a forklift into a wall resulting in damages of almost $3 million. Element and 5th Street filed an action against Lunar and its principals for failing to timely notify their insurer of the accident, which resulted in the insurer denying coverage. Lunar subsequently joined the subcontractor responsible for the accident to the lawsuit seeking contribution, to which the subcontractor filed objections because it claimed it was not a joint tortfeasor.  

Addressing that issue, the Court recognized that the joint tortfeasor statute requires that “the parties must either act together in committing the wrong, or their acts, in independent of each other, must unite in causing a single injury…A joint tort is defined as where two or more persons owe to another the same duty and by their common neglect such other is injured.” Neal v. Bavarian Motors, Inc., 882 A.2d 1022, 1028 (Pa.Super. 2005).  The Court found that there was no evidence that the Subcontractor acted together in committing a wrong, or that their independent actions united to cause a single injury.  The Court found that the two negligent acts-Lunar’s purported failure to timely handle an insurance claim, and the Subcontractor’s negligence in crashing the forklift- had nothing in common.  Thus, the Court denied the joinder motion.   

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