Under Workers’ Compensation Law Section 11, a third-party plaintiff may seek indemnification from the injured worker’s employer in two instances: (1) the worker suffered a "grave injury" as set forth in section 11; or (2) the third-party plaintiff and the employer entered into a written agreement prior to the accident concerning indemnification.

The New York Court of Appeals today in Tonking v. Port Auth. of N.Y. & N.J. determined that a contract between a building owner and an injured worker’s employer did not provide indemnification for the building owner’s construction manager.  The Court affirmed the Appellate Division, First Department’s holding that the language of the contract demonstrated that the parties did not intend for the construction manager to be indemnified by the injured worker’s employer.  The most important part of the decision is its last line, stating that the Court views the spirit of the Omnibus Workers’ Compensation Reform Act of 1996 (which included an amendment to section 11) as requiring clear and express language.