The plaintiffs filed a complaint in the Superior Court against the defendants seeking damages resulting from an electrical fire at the Westin Hotel at Copley Place in Boston on January 2, 1984. The complaint alleged negligence and breach of contract claims against the defendants, Turner Construction Company (Turner), the general contractor for the construction of the hotel; Guzovsky Electrical Corporation (Guzovsky), the subcontractor that designed and built the hotel's electrical system; and Syska and Hennessy, Inc. (Syska), the engineering company that reviewed and approved the design of the electrical system. The complaint also contained claims for breach of an express warranty against Turner and Guzovsky. Turner filed a cross claim against Guzovsky in which Turner asserted that Guzovsky had failed to honor its indemnity agreement to defend Turner in this action. The jury returned verdicts in favor of all three defendants. The judge subsequently on cross motions for summary judgment of Turner and Guzovsky entered judgment in favor of Guzovsky on the cross claim. Both the plaintiffs and Turner have appealed the adverse judgments against them.
The plaintiffs argue that the judge erred in precluding their expert witness from testifying in rebuttal and in denying a requested jury instruction. Turner claims that the judge erred in construing the indemnity agreement as inapplicable simply because the defendants prevailed in this action. We address each of these contentions.
Ordinarily, an offer of proof is required to preserve the right to appellate review of the refusal to allow a party to introduce the testimony of a witness. W.A. Robinson, Inc. v. Burke, 327 Mass. 670, 677 (1951). However, the failure to make a formal offer of proof will not prove fatal if the nature and materiality of the offered testimony are plain. Moran v. Levin, 318 Mass. 770, 774 (1945). Here, at the close of the defendants' case, the plaintiffs advised the judge that they wished to recall their expert witness to "offer testimony as to the possibility of the fire originating at the location as testified to by both [Syska's expert] and [Guzovsky's expert]." The judge denied the request on the ground that plaintiffs
A trial judge possesses broad discretion in deciding whether to permit the presentation of rebuttal evidence. Drake v. Goodman, 386 Mass. 88, 92 (1982). Mason v. General Motors Corp., 397 Mass. 183, 193 (1986). A party does not have a right to present rebuttal evidence that merely bolsters the party's affirmative case. Drake v. Goodman, 386 Mass. at 92. There are circumstances, however, in which a party may present rebuttal evidence as matter of right, as when seeking to refute evidence presented by an opposing party. Ibid.
Here the plaintiffs argue that the rebuttal testimony should have been permitted because it was necessary to refute the new and unanticipated theories of the fire's origin presented by the defendants for the first time at trial. It is true that Guzovsky in answers to interrogatories propounded by a third-party defendant stated that their expert was expected to testify that the cause of the fire was due to water intrusion, a theory consistent with the fire starting outside the limiter lug cabinet, while at trial Guzovsky's expert testified
2. The jury instructions. In charging the jury on the plaintiffs' claim of negligence, the judge read a passage from the case of Klein v. Catalano, 386 Mass. 701, 718 (1982). During jury deliberations, the jury sent a question to the judge requesting that the Klein v. Catalano case be reread to the jury. The judge responded by reading not only the quoted passage in his original charge but also additional passages from the case which appear not to have been directly quoted in the original jury instructions. The judge made it clear that the law as read applied only to the negligence claim. At the conclusion of this response to the jury's question, the plaintiffs requested that the judge read another passage from the case which distinguished an express warranty from professional negligence. The judge refused to do so and cut plaintiffs' counsel off from any further statement. The plaintiffs contend that the refusal of the judge to reinstruct on the express warranty claim was error, because the response as given was incomplete and misleading. The plaintiffs argue that the instruction as given created an impression in the jurors' minds that liability was to be determined against all three defendants only upon a theory of negligence without regard to the plaintiffs' claim upon a theory of an express warranty against Turner and Guzovsky.
The judge was not required to give the requested instruction. The jury asked only that the Klein v. Catalano case be reread to them. When this case was quoted in the original charge, it was expressly placed in the context of the plaintiffs'
3. The indemnification claim. Turner claims that, under the indemnification provision in its contract with Guzovsky, it is entitled to be reimbursed for its legal fees and costs in defending against plaintiffs' claims. The provision reads as follows:
Turner argues that the provision obligates Guzovsky to indemnify and to defend Turner against any claim which alleges damage or injury in connection with Guzovsky's work and does not require that such claim be proven successful.
Indemnity provisions are not read with any bias in favor of the indemnitor and against the indemnitee; rather, such provisions are to be fairly and reasonably construed to ascertain the intention of the parties and to effectuate the purpose sought to be accomplished. Whittle v. Pagani Bros. Constr. Co., 383 Mass. 796, 798 (1981). Speers v. H.P. Hood, Inc., 22 Mass.App.Ct. 598, 600 (1986). Here, the language of the indemnity provision is very broad. The provision obligates Guzovsky to indemnify Turner for any claims "made or asserted" suggesting that the claim need not be successful to trigger indemnification. Indeed, the use of the word "claim" as distinguished from the word "liability" in the provision connotes the assertion of a legal right rather than a recognition of that right. See Stephan & Sons v. Anchorage, 629 P.2d 71, 75 & n. 13 (Alaska 1981). Moreover, the provision states that Guzovsky is to "assume ... the defense of any action ... which may be brought against Turner ... upon or by reason of such claims." One cannot defend a claim if liability has already been established. Id. at 76. Consequently, if this language is to have any meaning, it must be construed to impose upon Guzovsky the obligation to defend Turner from the assertion of any claims arising out of Guzovsky's work.
In addition, it would appear that the purpose of the indemnity provision, particularly when considered in light of the requirement that Guzovsky procure insurance to cover the liability assumed, was to shift to Guzovsky, as the subcontractor,
In sum, on the plaintiffs' complaint, the judgment is affirmed. On Turner's cross claim against Guzovsky, the judgment is reversed and the matter is remanded to the Superior Court for further hearing to determine the damages to be awarded to Turner for its legal fees and costs in defending this action.
The subcontract between Turner and Guzovsky was executed on May 29, 1981. Since this court has stated that § 29C is not to be given retroactive effect, Jones v. Vappi & Co., 28 Mass.App.Ct. 77, 81 (1989), the statute has no bearing on the present case.