Decided March 17, 2008.
The defendant and third party plaintiff Gargiulo Bros. and the defendant Our Lady of Refuge Catholic Church [hereinafter the Church'] move pursuant to CPLR § 3212 for summary judgement on the issues of liability pursuant to Labor Law § 240(1) and other Labor Law claims. The plaintiff has cross moved seeking summary judgement on these Labor Law as well. Moreover, the third party defendant Sako Group has likewise moved seeking indemnification and other issues and the remaining defendants have cross moved seeking similar relief as well. The motions have been opposed respectively and papers have been submitted. After reviewing the arguments of all parties this court now makes the following determination.
On August 27, 2004 the plaintiff, Stanislaw Tama and Piotr Cegiel were working as laborers for third party defendant Sako Group, a company involved with the repair and replacement of windows at a property owned by defendant the Church at premises located at the corner of Foster Avenue and Ocean Avenue in Kings County. The defendant Gargiulo Bros. had contracted with the Church to repair and replace approximately forty three windows of the Church and subcontracted some of that work to Sako. At that location the plaintiffs were atop a scaffold and were working approximately forty feet above ground level. Both plaintiffs were provided with safety lines, however, the safety lines kept getting tangled with the scaffold lines making the work difficult. Specifically, the safety lines hung down and became tangled with the scaffold lines making the movement of the scaffold difficult and dangerous. The plaintiffs therefore, decided to unhook their safety lines from the harnesses while maneuvering the scaffold with the intent or reconnecting the harness to the safety lines after the scaffold had been rendered stationary with the use of cement nails. Indeed, on the fourth day of work, while the plaintiffs were attempting to secure the scaffold to the wall the scaffold suddenly moved causing the plaintiffs to fall off the scaffold to the ground below. The plaintiff Cegiel died as a result of the fall while Tama suffered injuries. This lawsuit alleging Labor Law violations as well as common law negligence followed and following the completion of discovery these summary judgement motions followed.
Conclusions of Law
Summary judgement may be granted where the movant establishes sufficient evidence which would compel the court to grant judgement in his or her favor as a matter of law ( Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595). Summary judgement would thus be appropriate where no right of action exists foreclosing the continuation of the lawsuit.
Labor Law § 240(1) imposes absolute liability upon owners, contractors or their agents for injuries sustained by workers engaged in certain enumerated jobs which arise where the work site is elevated and elevation devices do not provide proper protection, or materials above the worker are not properly secured or hoisted ( Ross v. Curtis Palmer Hydro Electric Co., 81 NY2d 494, 601 NYS2d 49, Haimes v. New York Telephone, 46 NY2d 132, 412 NYS2d 863). If a worker demonstrates that the statute has been violated the worker must likewise demonstrate that such violation was a proximate cause of the injury ( Blake v. Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 771 NYS2d 484). Thus, where it is demonstrated that a worker was recalcitrant, as that term will be defined presently, then a worker will fail to demonstrate that a violation of the Labor Law proximately caused the injury ( see, Wojcik v. 42nd Street Development Project, 386 F.Supp2d 442 [S.D.NY 2005]). As Wojik ( supra, footnote 10) noted, "the recalcitrant worker has, by definition, been provided with adequate and safe equipment to complete his task". Thus, the plaintiff's assertion that "proof of a violation of labor Law 240 which proximately causes injury establishes entitlement to judgement on liability, regardless of plaintiff's conduct" ( see, Plaintiff's Affirmation in Reply to Opposition of Defendant/Third Party Plaintiff Gargiulo Bros, Inc. in Further Support of Plaintiff's Cross-Motion for Summary Judgement, page 2) is true regardless of any recalcitrance on the part of the plaintiff. The recalcitrance of the plaintiff, if any, is an inquiry which is appropriate only after a determination concerning safety devices has already been made. As the court noted in Hernandez v. GPSCD (New York), 2006 WL 563308 [S.D.NY 2006], "the recalcitrant worker defense is not so much a defense as it is a method of disproving the causative element of a § 240(1) claim". Therefore, there must be a determination whether the defendant's violation of the Labor Law was a proximate cause of the accident or whether the plaintiff's recalcitrance was the sole proximate cause of any injury. Thus, an evaluation of the precise meaning of a recalcitrant worker as well as an adequate safety device is therefore necessary.
In Cahill v. Triborough Bridge Tunnel Authority , 4 NY3d 35 , 790 NYS2d 740  the Court of Appeals held that a worker could not avail himself of the labor Law protections where the worker was provided with adequate safety devices but refused to use them. This was true, the court noted, even if the instructions to use the safety devices were provided weeks before the accident. The court concluded that the worker was recalcitrant because he received specific instructions to use a safety line and disregarded that instruction. The court, however, ruled that the controlling issue in the case was whether a jury could conclude that such conduct was the sole proximate cause of the injury. In Robinson v. East Medical Center, LP, 6 NY3d 550, 814 NYS2d 589, the court further extended the duties imposed upon workers and held that a worker could not maintain Labor Law causes of action if "adequate safety devices are available at the job site, but the worker either does not use or misuses them". Thus, in Robinson, the worker knew he needed an eight foot ladder, and such ladder was available, and instead the worker used a six foot ladder knowing it was too short. The court concluded that such conduct was the sole proximate cause of the injury and the Labor Law causes of action were dismissed. It is thus abundantly clear that any question concerning the recalcitrance of the worker is only relevant if the safety devices are adequate. If inadequate then such inadequacy is a Labor Law violation as well as the proximate cause of such injury ( Blake, supra). While Cahill, ( supra) primarily modified and relaxed the rule concerning the immediacy of any safety instructions, it is beyond dispute that if the safety devices in Cahill were inadequate there would have been a Labor Law violation.
Applying those principles to the present case it must be noted that there are cases which specifically deal with the removal of a safety line. Therefore, in Moniuszko v. Chatham Green Inc. , 24 AD3d 638 , 808 NYS2d 696 [2d Dept., 2005], the court granted summary judgement in favor of plaintiff concerning Labor Law issues. In that case the plaintiff had temporarily removed his safety harness and fell suffering injuries. The court ruled that the sole proximate cause of the accident was "a broken hook which caused the scaffold to fall" and that any improper conduct on the part of the plaintiff was merely contributory negligence an insufficient defense pursuant to Labor Law § 240(1). Similarly, in Nane v. Dormitory Authority of the State of New York, 15 Misc 3d 1143(A), 841 NYS2d 821 [Supreme Court Richmond County 2007], the plaintiff disconnected a safety harness and walked across some planks. The worker had not yet reconnected the harness before one of the planks broke causing plaintiff to fall and sustain injuries. Again, the court held that the sole proximate cause of the accident was the broken plank and the failure to connect the harness was merely a contributing factor, insufficient to raise any question of fact.
Of course, not every instance where a worker removes a harness will the court nevertheless find a Labor Law violation. Thus, in Negron v. City of New York , 22 AD3d 546 , 803 NYS2d 664 [2d Dept., 2005], a worker freed himself from a safety line while trying to ascertain that a fire-retardant blanket was secure and as a result fell and suffered injury. The court rejected the plaintiff's argument that the Labor Law violations were the sole proximate cause of the accident. Rather, the court held "the sole proximate cause of the accident in this case was the failure on the part of the plaintiff to have himself again tied to the lanyard before attempting to ascertain that the blanket was properly secured". In Leniar v. Metropolitan Transit Authority, 37 AD3d 425, 829 NYS2d 619 [2d Dept., 2007] the plaintiff unhooked his harness and consequently fell and sustained injuries. The court held that plaintiff's conduct of unhooking the harness was the sole proximate cause of the accident.
These cases are not irreconcilable. Indeed, they precisely mirror the distinction drawn between the existence of adequate devices and their absence. Where an inadequate safety device was present such as in Moniuszko, ( supra) and Nane, ( supra) such inadequacy, by definition, was a Labor Law violation and a proximate cause of the injury. However, in Negron, ( supra) and Leniar, ( supra) there is no mention of the adequacy of any safety devices. Indeed, in those cases the only safety devices mentioned were the harnesses which had been removed by the plaintiffs. Thus, even if there were Labor Law violations, the sole proximate cause of the accident was the plaintiff's own conduct.
It is evident that the recalcitrance of the plaintiff is inextricably woven with the adequacy of any safety devices. Therefore, the court must explore the adequacy of the safety device in this case. The plaintiff submitted an expert affidavit of Leo Y. Lee, P.E. who stated that "both lifelines were incorrectly anchored and accordingly, would clearly interfere with the hoisting ropes when the lanyard and rope grabs were tied off to the lifelines . . ." ( See, Affidavit of Leo Y. Lee, P.E., ¶ 15). Thus, the expert clearly indicates that the placement of the anchor was inadequate. In Miglionico v. Bovis Lend Lease, Inc. , 47 AD3d 561 , 851 NYS2d 48 [1st Dept., 2008], there was a factual dispute whether the worker was provided with any safety harness at all. An expert for the plaintiff opined that even if a harness was provided there was not an appropriate anchorage point where the harness could have attached. The expert explained that "the accident would not have occurred if plaintiff had been provided with a 5,000-pound anchorage point" (Id). The court held that the defendant failed to raise any issue of fact concerning that specific point. The court noted that the defendant's expert or any other witness failed to demonstrate there was an adequate anchorage point with sufficient weight bearing capability or any anchorage point at all. Thus, the court concluded there was evidence that the plaintiff was not provided with an adequate safety device. Thus, this case states that an inadequate anchorage point is an inadequate safety device and certainly supports the position espoused by Mr. Lee that there was a Labor Law violation and that such violation was a proximate cause of the accident. To raise a question of fact the defendants must come forward with evidence opposing the conclusions of Mr. Lee. Therefore, the defendants must produce some competent evidence that the anchorage point was in fact safe and appropriate. The defendants introduce the testimony of Michael Carbone a supervisor inspector for the New York City Buildings Department who arrived at the Church shortly after the accident and conducted an investigation. The defendants assert that Mr. Carbone testified, at least impliedly, that the anchorage spot was proper, raising a question of fact whether there was any Labor Law violation. Specifically, the defendants argue that "with regard to the improper installation or improper set up, which is the basis for plaintiff's claim of a violation of Labor Law § 240(1), Inspector Carbone stated that, other than the violation that ropes and cables shall not be made fast to sharp objects or surfaces,' there is no reference to any violation regarding the way safety lines were installed and set up at the site (Sako's Supplemental Affirmation in opposition to Plaintiff's motion for Summary Judgement, ¶ 12). A careful examination of Mr. Carbone's deposition testimony is necessary. First, Mr. Carbone testified that he did not have any independent recollection if there were even safety lines on the day of the accident ( see, Deposition of Michael Carbone, pages 20,21). Moreover, he testified that he personally did not go to the roof and that a violation issued concerning the prohibition against tying ropes and cables to sharp objects or surfaces "could have" referred to safety lines as well ( see, Deposition of Michael Carbone, page 23). He was further asked whether he knew, either from speaking with the other investigator Mr. Casale or from personal knowledge, where the lifelines were anchored and he responded "I don't recall" ( see, Deposition of Michael Carbone, page 36). A few minutes later he was asked the following question: "is there anything on any of these three violations, Exhibit A, B and C, regarding the improper installation or improper setup, if you will of safety lines at the site?" and Mr. Carbone responded "yes" ( see, Deposition of Michael Carbone, pages 47,48). When asked to elaborate he explained "charge 1, ropes and cables shall not be made fast to sharp objects or surfaces'". Mr. Carbone agreed that referred to the ropes potentially rubbing against something and conceded there were no other references to other violations concerning the way safety lines were installed. On the following page Mr. Carbone further conceded and apparently modified his testimony of page 21 that indeed there were safety lines at the scene because if there wouldn't have been any that would have been a "clear violation". He was then asked whether he made "any observation of any problem with respect to the way the safety lines were set up?" He responded that he did not go to the roof and to the best of his recollection the lifeline was "inadequate" and he remembered one safety line from the ground below but could not recall what he exactly observed. He then conceded again that an improperly anchored safety line would have been a violation. He was then asked if the safety line would have fallen between the scaffold and the building (as asserted by Mr. Lee) would a ticket have been written for such violation. Mr. Carbone responded "I wouldn't have written a ticket after the fact". When asked "why not" he explained that since no one was on the scaffold when he arrived he could not "determine if that rope, if the wind brought it behind, around". Finally, on pages 60 and 61 Mr. Carbone was asked pointedly whether there was any problem with the anchoring of the safety lines from the roof and whether it was improper in any way. He responded "I didn't make the observation being I was on the ground. Inspector Casale was rooftop. I don't recall the anchorage of the lifeline". Then apparently contradicting his earlier testimony, Mr. Carbone was asked whether a violation would have been issued if indeed the anchorage of the lifeline was placed improperly and he responded "yes". He then explained that while such activity is certainly a violation, the violation might have been included under general improper rigging and hoisting and might not have merited its own violation and that no such violation issued in this case. He was then asked "does the fact that these violations do not make any reference to unsafe anchorage points, does that mean that you concluded that they were safe or is it they are just not part of this observation? Can you draw an inference?" Mr. Carbone responded "no. because, one, I didn't observe the anchorage. And two is, it would still be an unsafe practice to anchor a safety line improperly because it's a safety line." Moreover, concerning the deposition of Frank Casale, he specifically stated that the lifeline was not in a proper position ( see, Deposition of Frank Casale, page 20).
It is abundantly clear that the defendants have failed to rebut the expert affidavit of Mr. Lee and have failed to raise any question of fact whether the anchorage of the safety line in this case was proper. The deposition testimony of Mr. Carbone does not satisfy that burden. While it might be true that no violation was issued for the alleged improper anchorage, Carbone specifically stated that no inference concerning its position could therefore be drawn. Even more significantly, Carbone never saw the safety line and could scarcely comment about its location. Lastly, the defendants failed to introduce the necessary evidence to raise questions of fact, namely, expert evidence that the anchorage was properly placed. The mere fact that a violation was not issued concerning anchorage is not an expert determination that the anchorage was appropriate. Carbone's equivocal testimony is certainly insufficient to raise any question of fact.
Therefore, the plaintiff has presented unrefuted expert evidence that he not provided with an adequate safety device which proximately caused the injury. Thus, based on the foregoing, the plaintiff's motion seeking summary judgement on liability pursuant to Labor Law § 240(1) and § 240(2) is granted.
Turning to the claims alleged under Labor Law § 241(6) a careful examination of those industrial codes reveal that the defendant's have moved to dismiss six alleged industrial codes, namely 12 NYCRR 23-1.5, 12 NYCRR 23-1.15, 12 NYCRR 23-1.16, 12 NYCRR 23-1.17, 12 NYCRR 23-5.1 and 12 NYCRR 23-5.8.
It is well settled that any action based upon Industrial Code violations require that such violations mandate concrete and definitive specifications ( Ross v. Curtis-Palmer Hydro Electric Co., 81 NY2d 494, 601 NYS2d 49). 12 NYCRR 23-1.5 is a general provision and not a basis for liability ( Hasty v. Solvay Mill Ltd. Partnership, 306 AD2d 892, 760 NYS2d 795 [4th Dept., 2003]). Thus, that cause of action is dismissed. 12 NYCRR 23-1.15 concerning safety railings is a specific regulation ( Skudlarek v. Bethlehem Steel Corp., 251 AD2d 973, 673 NYS2d 344 [4th Dept., 1998], and a genuine question of fact has been raised as to its applicability in this case ( Shaheen v. Hueber-Breuer Construction, Co., Inc., 4 AD3d 761, 772 NYS2d 156 [4th Dept., 2004]). 12 NYCRR 23-1.16 which involves safety belts and harnesses likewise raises questions of fact ( see, Sasso v. NYMED Inc., 238 AD2d 799, 656 NYS2d 509 3rd Dept., 1997]). 12 NYCRR 23-1.17 which concerns life nets is inapplicable to the facts of this case and hereby dismissed ( see, Bennion v. Goodyear Tire Rubber Co., 229 AD2d 1003, 645 NYS2d 195 [4th Dept., 1996]). 12 NYCRR 23-5.1(j) which concerns safety railings on scaffolds also raises questions of fact ( see, Gallina v. City of New York, 9 Misc 3d 1127(A), 2005 WL 3001523 [Supreme Court kings County 2005]). 12 NYCRR 23-5.8 which involves the safety of scaffolds also raises questions of fact ( Ragone v. Spring Scaffolding Inc., 46 AD3d 652 , 848 NYS2d 230 [2d Dept., 2007]). Lastly, 12 NYCRR 23-5.9 which also involves scaffolds likewise raises questions of fact. Thus, all the industrial codes not dismissed shall be presented before a trier of fact for resolution. All summary judgement motions in their regard are denied.
The protections afforded a worker under Labor Law § 200 apply to all work places not just construction sites ( Paradise v. Lehrer, McGovern Bovis, Inc., 267 AD2d 132, 700 NYS2d 25 [1st Dept., 1999]). However, for a claim to succeed under this statute it must be demonstrated that the party held some supervisory control over the employee's specific work and had actual or constructive knowledge of the condition which caused the accident ( Comes v. New York State Elec. Gas Corp., 82 NY2d 876, 609 NYS2d 168, Panek v. County of Albany, 286 AD2d 86, 731 NYS2d 803 [3rd Dept., 2001]). Moreover, mere presence at the site is insufficient to create liability on the part of the party ( Lysiak v. Murray Realty Co., 227 AD2d 746, 642 NYS2d 350 [3rd Dept., 1996]).
In this case the plaintiff has not provided any proof that the Church or Garguilo Bros. maintained any control over the plaintiff's specific work, namely the removal and replacement of the windows. Indeed, the plaintiff does not significantly dispute this. Rather the plaintiff argues that since Garguilo Bros. had the authority to control or supervise the work they can be liable under Labor Law § 200. The plaintiff cites Hernandez v. 151 Sullivan Tenant Corp. , 30 AD3d 187, 819 NYS2d 490 [1st Dept., 2006] for the proposition that authority to control the work is the equivalent, for purposes of Labor Law § 200, with actually controlling the site. However, language about the authority to control the work site, mentioned in Hernandez and other cases, does not mean that such authority in the abstract binds a general contractor under Labor Law § 200. If that were true, hardly a general contractor could avoid liability since virtually all general contractors possess some supervisory authority. Rather, the authority' language is merely a necessary precondition for any eventual liability under the statute. In other words, the courts do not even evaluate the legal questions presented under Labor Law § 200 if the general contractor does not even possess the authority to supervise or control the work. If that prong has been satisfied then the courts next determine whether evidence has been presented that such supervision and control was exercised properly. Singh v. Black Diamonds LLC , 24 AD3d 138, 805 NYS2d 58 [1st Dept., 2005] supports this conclusion. In Singh, the court dismissed the Labor Law § 200 claim on the grounds that Bovis, the general contractor never instructed plaintiff how to perform his work and that Bovis did not oversee the work. Moreover, the court noted "the testimony of Bovis's project superintendent: that he conducted regular walk-throughs and, if he observed an unsafe condition, had the authority to find whoever was responsible for the condition and have them correct it or, if necessary, stop the work; that he discussed covering the subject hole in the roof with Nastasi's representative; and that he had inspected the plywood in question after it had been nailed down over the hole, simply indicates Bovis's general supervision and coordination of the worksite and is insufficient to trigger liability" (Id, see, also, O'Sullivan v. IDI Construction Co., Inc. , 28 AD3d 225 , 813 NYS2d 373 [1st Dept., 2006]). Thus, authority, standing alone is insufficient to impose liability under Labor Law § 200. Hernandez, ( supra) must therefore, be interpreted to mean that the opportunity to observe unsafe conditions and the failure to adequately address those obvious safety concerns when actually present at the site can substantiate a finding of negligence. It does not support the proposition that a general contractor with no involvement at all in the day to day operations should be held potentially liable because there existed some abstract ability to exercise supervision. Therefore, since no evidence has been presented that either the Church or Gargiulo Bros. maintained any control over the site or knew of any defective or dangerous conditions the Labor Law § 200 cause of action as to them are hereby dismissed ( see, Bush v. Williams, 279 AD2d 772, 718 NYS2d 496 [3rd Dept., 2001], Giambalvo v. Chemical Bank, 260 AD2d 432, 687 NYS2d 728 [2d Dept., 1999]). In addition, since the common-law negligence claims are predicated upon the same theories as the Labor Law § 200 claim those claims are likewise dismissed ( Dunham v. Hilco Construction Co., 89 NY2d 425, 676 NYS2d 1178).
The three defendants have all moved and cross moved seeking relief concerning indemnification and related issues. These motions, which are factually and legally intertwined will now be addressed. First, Sako argues that all indemnification concerning Tama should be dismissed since Tama failed to sustain a grave injury pursuant to Worker's Compensation law § 11. That contention is unopposed and is hereby granted. Likewise, Gargiulo is entitled to common law indemnification from Sako concerning Ceigel since there is no dispute that Ceigel's death constituted a grave injury. Moreover, Sako contends that the contractual indemnification must be dismissed as well even concerning Ceigel since there is no evidence that any contract existed. To support that contention Sako points to the deposition testimony of it's president, Edward Sakowski who testified that he did not remember signing the contract. Thus, Sako argues "it is uncontested that the contract purporting to require Sako to indemnify Gargiulo was not even signed by Sakowski. Consequently there is no basis to enforce its terms" ( see, Sako's Affirmation in Support of Notice of Motion for Summary Judgement, ¶ 20). That argument was opposed, essentially by the express testimony of Sakowski himself wherein he testified the signature looked like his ( see, Deposition of Edward Sakowski, page 31). Sako then introduced an affidavit of Sakowski wherein he states that upon reflection, he did indeed sign the contract, however, after the date of the accident, and that the date on the contract was in error. Gargiulo argues that affidavit is insufficient to raise any question of fact whether Sako should be bound by the terms of the agreement.
While such affidavit is obviously self-serving, that fact alone would not bar it's introduction to defeat a motion for summary judgement ( Josephson v. Crane Club Inc., 264 AD2d 359 [1st Dept., 1999]). However, the affidavit clearly contradicts earlier assertions of Sakowski wherein he stated in his deposition "I don't remember signing that" and "I never before sign it" and when asked if he ever used such a contract with Gargiulo answered "no" ( Schiavone v. Brinewood Rod Gun Club, 283 AD2d 234 [1st Dept., 2001]). As Schiavone noted, such "unexplained reversal" is not a firm basis upon which to oppose a summary judgement motion. Rather, such affidavit is merely proffered to avoid the consequences of prior statements and testimonies ( Smith v. Taylor, 279 AD2d 566 [2d Dept., 2001]). Of course, where the affidavit does not contradict earlier deposition testimony even if more detailed, then such affidavit will be accepted ( Bosshart v. Pryce, 276 Ad2d 314 [1st Dept., 2000]).
In this case, the new affidavit contradicts Sakowski's earlier deposition testimony. The complete denial concerning the existence of the contract and the fact such contract was not used the previous thirty or forty jobs between the two parties can only be called a contradiction to the subsequent affidavit submitted by plaintiff that of course there was a contract but that it was signed after the accident. Thus, there is no way to reconcile the deposition testimony that "I don't remember signing that" with "I am sure that I signed it after the accident" contained in the affidavit. Therefore, the affidavit is insufficient to raise any material issue of fact ( Bloom v. La Femme Fatale, 273 AD2d 187 [2d Dept., 2000]). Therefore, plaintiff has failed to demonstrate, with affirmative proof, the existence of a material fact and consequently as a matter of law a contract existed between Sako and Gargiulo.
Moreover, the language which requires Sako to indemnify Gargiulo does not include situations where Gargiulo was negligent and consequently is not a bar to potential recovery pursuant to General Obligations Law § 5-322.1.
Therefore, since it has been determined that Gargiulo does not face any claims for common law negligence for the happening of the accident since they did not supervise or control the site then there is no impediment for granting their claim of contractual indemnification from defendant Sako ( see, Kim v. 40th Associates, 306 AD2d 220, 761 NYS2d 228 [1st Dept., 2003]). Therefore, Gargiulo's motion seeking indemnification from Sako is granted and all motions seeking to dismiss these claims are denied.
Lastly, there are questions of fact, which foreclose summary judgement at this time whether the Church may seek indemnification from Gargiulo since there are questions whether Gargiulo was negligent, only concerning the Church, in relation to the hiring of Sako, the fulfillment of the contract and whether Gargiulo breached any duties concerning safety at the site, in relation to the Church alone. Therefore, while the Church might be entitled to contractual indemnification, such indemnification must necessarily await trial and the apportionment, if any, of liability on the part of the parties ( see, Masciotta v. Morse-Diesel Intern., Inc., 303 AD2d 309, 758 NYS2d 286 [1st Dept., 2003]). Likewise, the Church is entitled to common law indemnification from Sako concerning Ceigel.
Those issues must await a jury trial and indemnification may then follow if appropriate.