A Minnesota county jury recently returned a verdict of almost $1 million, in favor of a Gerber Ciano Kelly Brady client, represented by Partners Frank Ciano and Michael Brophy, who sought recovery of its litigation defense costs and attorney’s fees under a contractual indemnity agreement negotiated in 2010. The law firm’s client, the manufacturer of an amusement ride, entered into a contract for the sale and installation of a ride at a popular Minnesota vacation area. The contract between the manufacturer and operator contained a clause where the operator agreed to protect, indemnify, defend, and hold the manufacturer harmless from damages or losses arising out of claims for, among others, negligent operation of the amusement ride.In June 2018, an incident occurred on the ride, which resulted in two personal injury claims being filed against the manufacturer and operator. Plaintiffs alleged serious injuries, claiming significant past and future medical expenses and lost earnings.
Gerber Ciano Kelly Brady’s investigation clearly established multiple safety violations by employees. Our client tendered its defense and indemnification to the operator, and although consistently maintaining that the ride functioned properly on the day of the event, the operator rejected the tender and refused to reconsider its position during the lengthy litigation. Both defendants eventually settled with the plaintiffs, the manufacturer did so in a release that confirmed the settlement payment was solely to avoid further litigation costs and continuing to deny liability.
The sole issues remaining for trial were the manufacturer’s claim for defense and indemnification against the operator and the amount of its damages. In an extraordinary broad preparation of trial evidence, Gerber Ciano Kelly Brady reconstructed the accident, established the fault of the operator, and submitted all expenses incurred in this complex case. This case required the support of numerous technical, medical, economic, and life care experts.
In his closing argument at trial, Frank Ciano asked the jury to compensate the manufacturer for every single penny it had paid to defend itself in the litigation, including the amounts of its settlement payments to the plaintiffs. The jury then returned a verdict in the exact amount of the manufacturer's losses, representing a rare and remarkable application of a contractual indemnity clause in complex products liability litigation.
In addition to demonstrating the strength of Gerber Ciano Kelly Brady’s Litigation Practice Group, this case demonstrates the need for advance planning in all business transactions. The proper contract, which clearly sets forth the duties and obligations of both sides in any transaction, will allow a client to minimize, or completely avoid, future liabilities. Gerber Ciano Kelly Brady’s Risk Avoidance Practice Group was created to support our clients in these types of scenarios. For more information, visit https://www.gerberciano.com/what-we-do/risk-reduction-loss-avoidance/.
Our team of outstanding lawyers at Gerber Ciano Kelly Brady will always keep you advised of new developments and trends in the law and how they affect our clients. Please feel free to contact Thomas Bona or Matthew Lerner.
Thomas Bona, Partner
tbona@gerberciano.com
Matthew Lerner, Partner
mlerner@gerberciano.com
