The New York Court of Appeals handed down its decision today in Flores v. Lower East Side Serv. Ctr., holding that a written indemnification contract need not be signed to fall within the ambit of Workers’ Compensation Law sec. 11.  Section 11 recognizes common-law indemnification between an employer and a third-party (usually a general contractor) when an employee experiences a "grave injury" as set forth in the statute and contractual indemnification where there is a written agreement entered into before the employee’s accident.

There is a lot of case law concerning what constitutes a "grave injury" under sec. 11, but Flores addresses the Court’s first interpretation of the contract-based indemnification aspect of Section 11.  The Court logically held that neither the  plain language of Section 11, nor its legislative history support that the written agreement be signed.

This case is an excellent and cogent decision that completely rejected form over substance — i.e., the Court not only strictly construed Section 11, but also looked at the evidentiary proof that constituted indicia that the parties entered into an indemnification contract.