                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5272-15T4


THE ESTATE OF LUIS CARLOS TAVARES
and PAULA PIRES, his wife, serving
as Administratrix Ad Prosequendum
of the ESTATE OF LUIS CARLOS TAVARES,

        Plaintiff,

v.

LUCAS CONSTRUCTION GROUP, INC.,
FREDERIC R. HARRIS, INC., DMJM +
HARRIS, INC., DMJM HARRIS/AECOM,
and AECOM,

        Defendants-Respondents,

and

COUNTY OF MIDDLESEX,

        Defendant-Appellant,

and

v.

LIONEL LUCAS, ANTONIO LUCAS,
CONSOLIDATED RAIL CORPORATION,
TOWNSHIP OF WOODBRIDGE, and
TRADEWINDS CONSTRUCTION, INC.,

     Defendants.
__________________________________
          Argued May 8, 2018 – Decided June 20, 2018

          Before Judges Yannotti, Carroll and Mawla.

          On appeal from Superior Court of New Jersey,
          Law Division, Middlesex County, Docket No. L-
          2713-11.

          Jerald J. Howarth argued the cause for
          appellant   (Howarth   &   Associates, LLC,
          attorneys; Jerald J. Howarth and Purnima D.
          Ramlakhan, on the briefs).

          James G. Serritella argued the cause for
          respondent Lucas Construction Group, Inc.
          (Biancamano & DiStefano, PC, attorneys; James
          G. Serritella, on the brief).

          William F. Waldron, Jr., argued the cause for
          respondents Frederic R. Harris, Inc., DMJM +
          Harris, Inc./AECOM and AECOM (Marshall,
          Dennehey, Warner, Coleman & Goggin, attorneys;
          William F. Waldron, Jr., and Patricia M.
          McDonagh, on the brief).

PER CURIAM

     The County of Middlesex (County) appeals from various orders

entered by the trial court, which held that the County was not

entitled to contractual indemnification from defendants Lucas

Construction Group, Inc. (Lucas), or Frederic R. Harris, Inc.,

DMJM + Harris, Inc., DMJM Harris/AECOM, and AECOM (collectively,

AECOM) for attorney's fees it incurred in defending claims brought

against it in an underlying lawsuit. We affirm.




                                2                          A-5272-15T4
                                           I.

      This appeal arises from the following facts. Lucas entered

into a contract with the County to provide "all labor, materials,

and equipment" for a bridge replacement project in Avenel, New

Jersey    (the     Lucas     contract).           The     contract         incorporated

Supplementary Specifications and the New Jersey Department of

Transportation (NJDOT) 2001 Standard Specifications for Road and

Bridge Construction (NJDOT Specifications). The contract contained

several indemnity provisions.

      AECOM also entered into a contract with the County to provide

professional engineering consulting services in connection with

the   bridge     replacement     project         (the    AECOM    contract).        These

services required AECOM to provide a full-time inspector to monitor

Lucas's work, ensure compliance with the plans and specifications

for the project, and prepare and furnish daily reports. The County

was   required    to   provide      its    own    project      manager      to    oversee

operations at the project site as well. The AECOM contract also

contained a contractual indemnity provision.

      On August 11, 2009, Luis Carlos Tavares (Tavares) was fatally

injured   while    working     as   a     laborer       for   Lucas   on    the    bridge

replacement project. On April 17, 2013, Tavares's estate and his

wife, the administrator of the estate (plaintiffs), filed an

amended   complaint     naming       Lucas,       the     County,     and    AECOM       as

                                           3                                      A-5272-15T4
defendants.     Lionel      Lucas,       Antonio      Lucas,   Consolidated         Rail

Corporation (Conrail), the Township of Woodbridge (Township), and

Tradewinds Construction, Inc. (Tradewinds) were also named as

defendants.

     Plaintiffs alleged that as a result of the negligence of the

County, Lucas, and AECOM, a 1500 pound steel plate separated from

a Campbell Hook assembly and struck Tavares's head, causing his

death.    Plaintiffs     also      claimed      several     defendants,      including

Lucas, AECOM, and the County, were negligent in failing to inspect,

maintain,     repair,       and        supervise      workplace       equipment     and

components; provide a safe place to work; and establish, provide,

and implement proper training. Plaintiffs further alleged the

County,    Lucas,     and   AECOM       permitted     unsafe     practices     at    the

workplace,    violated       accepted          construction-site       policies      and

procedures,     and      otherwise         failed      to    fulfill       contractual

responsibilities regarding the workplace.

     Evidence    obtained         in    discovery     revealed    that     Lucas    used

damaged    construction      equipment,          including     the    Campbell      Hook

assembly, to lift the 1500 pound plate at the time Tavares was

injured. The hoisting assembly that Lucas used to raise the subject

plate included two hooks, which engaged into holes in the steel

plate. The hooks lacked a safety pin to prevent the plate from

dislodging.    Antonio      Lucas,       who    was   operating      the   Caterpillar

                                            4                                  A-5272-15T4
excavator, which was moving the plate at the time of the incident,

testified that he did not inspect the hooks before use.

      AECOM assigned William J. Meister to act as field inspector

for the project. At his deposition, Meister testified that on the

day of the incident he was on vacation and not present at the work

site. Meister claimed he advised Lucas, the County, and his

superiors that he would be on vacation the week in which the

incident   occurred.   Meister    also   acknowledged    that     AECOM   was

responsible for Lucas's progress, and "blatant" or "conspicuous"

safety issues.

      Ronald M. Sender, a supervising engineer for the County,

testified that it was his and the County's policy or procedure to

ensure coverage if the resident engineer was absent from a work

site. Sender said, "[It is] common practice that if someone is

going on vacation, they say I won't be here, this person will be

. . . doing the inspection and reporting to you." However, when

asked who had responsibility to ensure that a substitute resident

engineer was present, Sender stated "[n]o one at the [C]ounty

would ensure [that]."

      On April 25, 2014, the County filed a motion for summary

judgment seeking dismissal of plaintiffs' complaint and all cross-

claims against it, and motions for summary judgment against Lucas

and   AECOM   for   contractual   indemnification.      Conrail    and    the

                                    5                                A-5272-15T4
Township filed motions for summary judgment, and Lucas, Antonio

Lucas, and Lionel Lucas sought summary judgment on liability. In

addition, Lucas and AECOM filed cross-motions for summary judgment

on   the   County's    claims   against   them   for   contractual

indemnification.

     On May 13, 2014, the motion judge dismissed the claims against

Conrail, the Township, Antonio Lucas, and Lionel Lucas, and granted

Lucas's motion for summary judgment on liability.1 In addition, on

May 13, 2014, the judge heard oral argument on the County's motion

for summary judgment on the claims asserted against it, which was

denied by order of the same date.

     The judge determined that there was a genuine issue of

material fact as to whether the County violated its own policy or

practice in failing to oversee safety at the work site on the day

of the accident. In so ruling, the judge stated:

           Sender affirmed that it is . . . general
           practice to ensure that there was coverage [at
           the work site] if the resident engineer was
           away on vacation.

           The engineer on site seems to have the
           responsibility, in this case with these

1
   Lucas obtained liability insurance through Penn National
Insurance Company and initially provided a defense to the County;
however, the County's insurer, Mid-Continent/Great American
Insurance Group, acknowledged that it had issued an Owner's and
Contractor's Protective Policy to the County, and that this policy
was primary. Howarth & Associates, LLC then assumed the defense
of the County.

                                 6                          A-5272-15T4
           contracts, to ensure that there are no blatant
           safety violations. [It is] up to a jury to
           decide whether failing to wear a helmet is a
           blatant safety violation, or lifting a heavy
           metal plate without prior notice . . . is a
           blatant safety violation, or utilizing the
           hooks that were utilized.

                   . . . .

           I am satisfied that a reasonable jury can
           conclude that the [C]ounty violated its
           practice of ensuring safety coverage by
           failing to make certain that a person was on
           site who could have evaluated the safety
           hazards.

     The County filed a motion for reconsideration. The County

argued that AECOM was not contractually responsible for safety at

the work site, and as such, the County's duty to plaintiff could

be no greater than AECOM's duty. The judge denied the motion.

     The   judge    found    that   reconsideration   was   not   warranted

because the County had presented "no new material evidence for the

[c]ourt to consider." The judge stated:

           Here, the County may also be liable for
           failing in its exclusive duty of providing a
           replacement for a supervising engineer while
           he was away on vacation. I say "may" because
           it seems, to me, to be clear that that is a
           question of fact and a question . . . for a
           fact-finder.

           The language of the scope of work for
           professional services for this project,
           combined with the deposition of [Mr.] Sender,
           some of which was read into the record . . .
           raises an issue of fact as to whether


                                      7                             A-5272-15T4
          defendant should have provided a replacement
          engineer for Mr. Meister while he was absent.

          The County cannot eliminate all questions of
          fact relating to its responsibility, direct
          or indirect, in this matter. Because it cannot
          do so and because none of the material
          presented before the [c]ourt appears . . . to
          the [c]ourt to be new, the [c]ourt denies the
          motion . . . to reconsider its earlier ruling
          denying summary judgment.

    On June 6, 2014, the judge heard oral argument on the cross-

motions by Lucas, AECOM, and the County for summary judgment on

the indemnification claims. The judge stated he would issue a

written opinion on the matter; however, the judge did not issue

an opinion. Instead, the judge filed various orders dated August

14, 2014, which granted the County's cross-motions for summary

judgment seeking indemnification from Lucas and AECOM, and ruled

that Lucas and AECOM owed contractual indemnity to the County.

    On September 2, 2014, AECOM's attorney sent a letter to the

trial court requesting "additional action, clarification, and/or

motion practice" with regard to the August 14, 2014, orders. On

September 11, 2014, the judge acknowledged on the record that the

orders issued on August 14, 2014, were entered in error.

    The   judge   further   acknowledged   that   no   decision   on   the

County's motions on indemnification had been made, and there was

no letter opinion accompanying the orders inadvertently filed on

August 14, 2014. The judge entertained arguments from the County,

                                  8                               A-5272-15T4
Lucas, and AECOM on the issue of indemnification, and by order,

dated September 15, 2014, and letter opinion, dated September 16,

2014, the judge vacated the August 14, 2014 orders and denied the

County's      motions   for    summary    judgment   on    the    issue     of

indemnification.

     In October 2014, plaintiffs settled their claims against

AECOM   and   Tradewinds.     Moreover,   in   November   2014,   plaintiffs

provided the County with a stipulation dismissing with prejudice

plaintiffs' claims against the County.

     On January 20, 2015, AECOM filed a motion for summary judgment

to dismiss the County's claims against it for indemnification.

Lucas filed a cross-motion seeking similar relief. The County

filed two cross-motions for summary judgment on indemnification

as to Lucas and AECOM, respectively.

     On April 17, 2015, another Law Division judge heard oral

argument on the four motions. By order dated June 24, 2015, the

judge granted the motions by Lucas and AECOM, and denied the

County's motions. The County subsequently filed a motion for

reconsideration, which was heard on September 4, 2015. By order

dated July 14, 2016, the judge denied the County's motion. This

appeal followed.

     On appeal, the County argues: (1) the matter must be remanded

as the County was entitled to a hearing to establish it was

                                     9                               A-5272-15T4
negligence-free   and   could   seek      counsel    fees    pursuant   to   the

indemnity provisions in the Lucas and AECOM agreements; (2) the

July 14, 2016 order must be reversed because the trial court

erroneously denied the County's motion for summary judgment on

liability; (3) the County is entitled to attorney's fees under

Kieffer v. Best Buy, 205 N.J. 213 (2011); (4) both Lucas and AECOM

must indemnify the County pursuant to the terms of their respective

contracts; (5) the County is entitled to attorney's fees from

Lucas and AECOM on the theory of common law indemnification; and

(6) Lucas owes the County contractual indemnity pursuant to Azurak

v. Corporate Property Investors, 175 N.J. 110 (2003).

                                    II.

     Relying upon the court's decision in Central Motor Parts

Corp. v. E.I. duPont deNemours & Co., 251 N.J. Super. 5 (App. Div.

1991), the County first argues the trial court erroneously denied

it the opportunity for a trial, plenary hearing, or "settlement

proceeding" establishing that it had no liability to plaintiffs

and therefore was entitled to indemnification by Lucas and AECOM.

The County contends that where there is no trial or settlement

proceeding establishing liability, the so-called "after-the-fact"

approach   requires   the   trial   court    to     afford   the   County    the

opportunity to prove that it was "fault-free." We disagree.



                                    10                                  A-5272-15T4
      The "after-the-fact" approach, first articulated in Central

Motor, "permits an indemnitee to recover counsel fees if the

indemnitee     is    adjudicated    to    be   free   from   active   wrongdoing

regarding the plaintiff's injury, and has tendered the defense to

the indemnitor at the start of the litigation." Mantilla v. NC

Mall Assocs., 167 N.J. 262, 273 (2001) (citing Cent. Motor, 251

N.J. Super. at 11).

      "[A]n indemnitee who defends exclusively against the acts of

the indemnitor may recoup from the indemnitor the reasonable costs

of its defense." Cent. Motor, 251 N.J. Super. at 10 (emphasis in

original). "Costs incurred by a[n] [indemnitee] in defense of its

own   active        negligence     or    independent    warranties         are    not

recoverable, but those costs incurred on defending claims on which

the [indemnitee] is found only derivatively or vicariously liable

are recoverable." Id. at 11.

      The   purpose     of   the   "after-the-fact"      approach     is    not    to

determine whether an indemnitee is ultimately "fault-free." Id.

at 10–12. Rather, it is for determining whether an indemnitee has

defended against claims of its own independent fault or the fault

of the indemnitor. Ibid. A settlement proceeding fixing liability

is only necessary where the "indemnitee incurred legal costs

defending its vicarious liabilities." Id. at 12–13.



                                         11                                 A-5272-15T4
      Here, the record shows that at all times throughout this

litigation,   the    County   has     solely   been   defending    against

plaintiffs' claims against the County for its own alleged acts of

negligence. Plaintiffs did not claim that the County was only

derivatively or vicariously liable for the alleged negligence of

Lucas or AECOM.

      Thus, even if the County were adjudicated "fault-free" on the

claims asserted against it for its own alleged independent acts

of   negligence,    the   County    still   would   not   be   entitled    to

contractual indemnity from AECOM or Lucas for the attorney's fees

incurred in defending against those claims. Accordingly, the trial

court did not err by failing to conduct an evidentiary hearing to

determine if the County was "fault-free."

                                    III.

      Next, the County argues that the trial court erred by denying

its initial motion for summary judgment on the claims plaintiffs

asserted against it in the amended complaint, and by thereafter

denying its motion for reconsideration. Again, we disagree.

      Summary judgment must be granted if "there is no genuine

issue as to any material fact challenged and that the moving party

is entitled to a judgment or order as a matter of law." R. 4:46-

2(c). "An issue of fact is genuine only if, considering the burden

of persuasion at trial, the evidence submitted by the parties on

                                    12                              A-5272-15T4
the motion, together with all legitimate inferences therefrom

favoring the non-moving party, would require submission of the

issue to the trier of fact." Ibid.

     In reviewing a trial court's decision to grant or deny a

motion for summary judgment, we conduct a de novo review, using

"the same standard as the trial court." Templo Fuente De Vida

Corp. v. Nat'l Union Fire Ins. Co. of Pitt., 224 N.J. 189, 199

(2016). We must determine whether there are substantial, genuinely

disputed issues of fact, and not simply issues of an "immaterial

or . . . insubstantial nature." Brill v. Guardian Life Ins. Co.

of Am., 142 N.J. 520, 540 (1995). The non-moving party cannot

defeat a summary judgment motion "merely by pointing to any fact

in dispute." Ibid.

     Here, plaintiffs asserted claims against the County for its

alleged   negligence   in   failing    to   follow   its   own   policies,

procedures,   and   practices   with   regard   to   supervision   of   the

worksite. Under its contract with AECOM, the County was required

to provide its own project manager to oversee the operations at

the work site, and AECOM was required to prepare and furnish daily

reports to the County, creating an ongoing dialogue between Meister

and Sender.

     The trial court correctly found that there was a genuine

issue of material fact as to whether the County retained control

                                  13                               A-5272-15T4
over the work site and whether the County provided the proper

supervision of the work. Thus, the trial court did not err by

denying the County's motion for summary judgment on the claims

plaintiffs asserted against the County in their amended complaint.

     Moreover, the County has failed to establish that the trial

court erred by denying its motion for reconsideration of the order

denying   summary    judgment.   A    motion    for    reconsideration     is

committed to the sound discretion of the court, which should be

"exercised in the interest of justice." Cummings v. Bahr, 295 N.J.

Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242

N.J. Super. 392, 401 (Ch. Div. 1990)).

     Reconsideration is appropriate only when a court has rendered

a decision "based upon a palpably incorrect or irrational basis,"

or failed to consider or "appreciate the significance of probative,

competent evidence." Ibid. (quoting D'Atria, 242 N.J. Super. at

401-02). Here, the County failed to show that in denying summary

judgment, the court had ruled on an incorrect or irrational basis,

or   failed   to    appreciate   probative     and    competent   evidence.

Therefore, the court did not err by denying the County's motion

for reconsideration.

                                     IV.

     The County argues the trial court erroneously relied upon the

"risk-shifting analysis" of Azurak and Mantilla, rather than the

                                     14                             A-5272-15T4
"after-the-fact" approach enunciated in Kieffer and Central Motor

for "fault-free" indemnitees that seek "counsel fees only." The

County therefore argues that the trial court erred by denying its

motion for summary judgment and granting the motions by Lucas and

AECOM for summary judgment on the issue of indemnification.

     Central Motor established that the trial court should review

the record to determine whether an indemnitee has incurred costs

defending against claims against the indemnitor or claims against

the indemnitee. 251 N.J. Super. at 11. "Central Motor expresses

the common-law principle that 'an indemnitee who has defended

against allegations of its independent fault may not recover its

[defense] costs.'" Mantilla, 167 N.J. at 272 (quoting Cent. Motor,

N.J. Super. at 10).

     In Mantilla, the Court held that an indemnitee cannot recover

legal expenses incurred in defending itself against independent

claims based upon its own negligence unless the parties explicitly

agree otherwise. Id. at 275. In that case, a patron brought a

negligence claim against the owner of a shopping mall and its

janitorial-services contractor. Id. at 264. The case went to trial

and the jury returned a verdict finding the owner forty-percent

at fault, the contractor fifty-percent at fault, and the plaintiff

ten-percent   at   fault.   Id.   at   265.   The   owner   then    sought

indemnification from the janitorial-services contractor. Ibid.

                                  15                               A-5272-15T4
      The Court held, however, that "absent explicit contractual

language to the contrary, an indemnitee who has defended against

allegations of its own independent fault may not recover the costs

of its defense from an indemnitor." Id. at 275. In addition, as

previously stated, the Court adopted the "after-the-fact" approach

previously articulated in Central Motor. Id. at 273 (citing Central

Motor, 251 N.J. Super. at 10–11).

      In Azurak, the Court reaffirmed the principles enunciated in

Mantilla, and held that a "broad form" indemnification clause,

which attempted "to include an indemnitee's negligence within an

indemnification agreement without explicitly referring to the

indemnitee's 'negligence' or 'fault,' . . . is no longer good

law." 175 N.J. at 112. The Court stated that Mantilla reaffirmed

the   "'bright   line'   rule   requiring    'explicit   language'   that

indemnification and defense shall include the indemnitee's own

negligence." Ibid. (quoting Azurak v. Corp. Prop. Inv'rs, 347 N.J.

Super. 516, 523 (App. Div. 2002)).

      Most recently, in Kieffer, the Court considered the terms of

an indemnification agreement executed between a property owner and

a   cleaning   contractor,   and   another   indemnification   agreement

between the cleaning contractor and a sub-contractor. 205 N.J. at

216. The trial on the plaintiff's negligence claims resulted in a

no-cause verdict for all three defendants. Ibid. The trial court

                                   16                            A-5272-15T4
held,    however,   that   the   sub-contractor   must   indemnify   the

contractor and, in turn, the property owner. Id. at 220.

       The Court held that the trial court erred by requiring the

sub-contractor to indemnify the contractor and, ultimately, the

property owner. Id. at 217. The Court determined that the sub-

contract did not require the sub-contractor to indemnify the

contractor and the property owner for their legal costs in the

absence of a determination that plaintiff's injuries were caused

by the sub-contractor's "negligence, omission, or conduct." Ibid.

The trial court never made a finding of negligence, and therefore,

the sub-contractor was not contractually responsible for paying

the defense costs of the property owner and contractor. Id. at

225.

       In this case, the County argues that it is not seeking

indemnification for its own negligence, but rather, that it is

only seeking attorney's fees based on the language of the contract.

The County further argues that Kieffer applies in this case because

it has essentially been found to be "fault-free." Again, we

disagree.

       As stated previously, plaintiffs' amended complaint set forth

independent claims of negligence against the County arising from

the County's own alleged acts of negligence, and the County moved

for summary judgment to dismiss these claims. The trial court

                                   17                           A-5272-15T4
found, however, that there were genuine issues of material fact

regarding the County's potential liability for its own independent

acts of negligence.

     Moreover, in the amended complaint, plaintiffs did not assert

that the County was derivatively or vicariously liable for the

alleged negligence of Lucas or AECOM. The record shows that

throughout the litigation, the County has been defending against

allegations   of    its   own   negligence.   Therefore,    the    County's

reliance on Kieffer is misplaced.

     We conclude the trial court engaged in the proper analysis

in reviewing the County's motions for summary judgment seeking

contractual indemnification from Lucas and AECOM, and correctly

decided as a matter of law that the County is not entitled to

reimbursement      of   its   attorney's   fees.   The   court    correctly

determined that the County incurred the fees defending against

claims of its own independent negligence and not defending claims

of derivative or vicarious liability.

     Therefore, the trial court did not err by granting Lucas's

and AECOM's motions for summary judgment on the County's claims

for indemnification, and denying the County's motions for summary

judgment seeking indemnification from Lucas and AECOM.




                                    18                              A-5272-15T4
                                               V.

      The       County     further       argues     that       it    is    entitled      to

indemnification for its attorney's fees pursuant to its agreements

with Lucas and AECOM.

      The interpretation of a contract is a legal question, which

is   reviewed      de    novo    by    this     court,       and   "[a]   trial   court's

interpretation of the law and the legal consequences that flow

from established facts are not entitled to any special deference."

Kieffer, 205 N.J. at 222–223 (quoting Manalapan Realty, LP v. Twp.

Comm., 140 N.J. 366, 378 (1995)). Therefore, an appellate court

must "look at the contract with fresh eyes." Id. at 223.

      "The      objective        in    construing        a     contractual    indemnity

provision is the same as in construing any other part of a contract

– it is to determine the intent of the parties." Ibid. (citing

Mantilla,       167     N.J.    at     272).    "The     judicial     task   is    simply

interpretative; it is not to rewrite a contract for the parties

better than or different from the one they wrote for themselves."

Ibid. The court must give contractual terms "their plain and

ordinary meaning." Ibid. (quoting M.J. Paquet, Inc. v. N.J. Dep't

of Transp., 171 N.J. 378, 396 (2002)).

      As    a    general       rule,    an   indemnity        contract    "will   not    be

construed to indemnify the indemnitee against losses resulting

from its own negligence unless such an intention is expressed in

                                               19                                 A-5272-15T4
unequivocal terms" in the agreement. Ramos v. Browning Ferris

Indus., Inc., 103 N.J. 177, 191 (1986) (citing Longi v. Raymond-

Commerce Corp., 34 N.J. Super. 593, 603 (App. Div. 1955)).

       "A party ordinarily is responsible for its own negligence,

and shifting liability to an indemnitor must be accomplished only

through express and unequivocal language." Kieffer, 205 N.J. at

224.    "[A]bsent   statutory   or    judicial   authority   or   express

contractual language to the contrary, each party is responsible

for its own attorney's fees." Ibid. Moreover, if the meaning of

an indemnity provision in a contract is ambiguous, the provision

should be "strictly construed against the indemnitee." Id. at 223

(quoting Mantilla, 167 N.J. at 272).

       A. The Lucas Contract

       The County relies upon three paragraphs in the Lucas contract

to support its claim for contractual indemnity. The County first

relies on paragraph 107.22 of the Supplementary Specifications,

which provides:

            The contractor shall save, protect, indemnify
            and hold harmless . . . [Conrail], [the
            County], its employees and/or agents from any
            and all injuries or claims for injuries or
            damages to persons or property caused by the
            Contractor or its employees, agents and/or
            subcontractors   in   undertaking  the   work
            contemplated by these bid specifications. The
            indemnification/hold harmless provided to the
            County hereunder shall survive the completion


                                     20                           A-5272-15T4
          of the work and final acceptance of the
          project by the Board of Chosen Freeholders.

     Next, the County cites the "Sanitary, Health and Safety

Provisions," of the NJDOT Specifications, which were incorporated

by reference in the contract. Under subsection 107.10(B)(1)(b) of

the NJDOT Specifications, "[t]he Contractor is solely responsible

for creating, implementing, and monitoring [a] [Safety] Program."

Further, paragraph 107.10(B)(2) states that

          [t]he Contractor is solely responsible for all
          aspects of the [p]rogram including, but not
          limited   to,   the   development,   revision,
          implementation, monitoring, and updating of
          the [p]rogram. Pursuant to Subsection 107.22,
          the [c]ontractor shall defend, indemnify, and
          save harmless the [County] from any and all
          liability from any actions arising directly
          or indirectly or alleged to arise from the
          [p]rogram.

     In addition, the County relies upon subsection 107.22(2),

"Risks Assumed by the Contractor," of the NJDOT Specifications,

which provides:

          The [c]ontractor shall bear the risk of
          claims, just or unjust, by third persons made
          against the [c]ontractor or the [County], on
          account of injuries (including wrongful
          death), loss or damage of any kind whatsoever
          arising or alleged to arise out of or in
          connection with the performance with the
          [w]ork. The risk of claims, whether or not
          actually caused by or resulting from the
          performance of the [w]ork or out of or in
          connection with the [c]ontractor's operations
          or presence at or in the vicinity of the
          construction site or [County] premises,

                               21                          A-5272-15T4
          whether such claims are made and whether such
          injuries, loss, and damages are sustained,
          applies at any time both before and after
          [a]cceptance.

     However, the indemnification language contained             in these

three provisions of the Lucas contract falls short of the explicit,

"bright-line" contractual language required for indemnification

of an indemnitee's own alleged acts of negligence. Paragraph 107.22

of the Supplementary Specifications does not mention the County's

negligence.   Rather,   paragraph    107.22   states   that   Lucas   shall

indemnify the County from any and all injuries, claims, injuries,

or damages to persons or property caused by Lucas's own negligence.

     Subsection 107.10 of the NJDOT Specifications also does not

mention the County's negligence. Instead, this provision requires

Lucas to implement a safety program, states that Lucas is solely

responsible for all aspects of the program, and directs Lucas to

"defend, indemnify, and save harmless the [County] from any and

all liability from any actions arising directly or indirectly or

alleged to arise from the [p]rogram" pursuant to subsection 107.22.

The agreement does not expressly state that Lucas shall indemnify

the County for any actions that may arise from its own negligence

with regard to the program.

     Furthermore, subsection 107.22 of the NJDOT Specifications

does not clearly and unequivocally impose on Lucas an obligation


                                    22                            A-5272-15T4
to indemnify the County for its own negligence. Indeed, the

indemnification language in subsection 107.22 is similar to the

indemnity provision at issue in Mantilla. 167 N.J. at 266.

     That provision stated, "Contractor shall indemnify and save

Owner harmless from any and all loss, cost, expense, damages,

claims and liability for bodily injury, death or property damage

occurring in and about the Shopping Center as a result of the work

performed and materials and equipment installed or furnished by

Contractor hereunder." Ibid. As the Mantilla Court held, this

language does not provide for indemnification for claims arising

out of the indemnitee's own negligence. Id. at 276. The same

conclusion applies in this case.

     In addition, there is no ambiguity in the contract on the

issue of whether Lucas must indemnify the County for the County's

own negligence. Even if the agreement was ambiguous, any ambiguity

on the issue of indemnification must be "strictly construed against

the indemnitee." Kieffer, 205 N.J. at 223 (quoting Mantilla, 167

N.J. at 272).

     B. The AECOM Contract

     In support of its claim for indemnification against AECOM,

the County relies upon paragraph 120        of the AECOM contract,

"Responsibility   for   Claims   and   Liability,"   which   states    in

pertinent part that AECOM

                                  23                            A-5272-15T4
           shall indemnify and save harmless . . . [the
           County], its officers, agents and employees
           from and against any and all claims, suits,
           actions, damages, losses, demands and costs
           of every name and description resulting from
           or claimed to result from any negligent act,
           error or omission of [AECOM] and/or any of its
           Subconsultant(s)/Subcontractor(s)    in    the
           performance of services or resulting from the
           non-performance of the [c]onsultant and/or any
           of its Subconsultant(s)/Subcontractor(s) of
           any of the covenants and specifications of
           this [p]roposal, including any supplements
           thereto, and such [indemnification] shall not
           be limited by reason of any insurance
           coverage. The [c]onsultant shall provide all
           professional services required by the County
           in defending all claims against the County
           which relate in any way to alleged errors,
           omissions or alleged failure to supervise by
           the [c]onsultant arising out of this contract
           without additional compensation. The County
           shall recover from the [c]onsultant its
           attorney's fees, expert witness costs, cost
           of consultant(s) necessary for evaluation of
           the project, and any other costs incurred.

      This provision of the AECOM contract does not, however,

include language that meets the "bright-line" standard required

to compel indemnification for an indemnitee's own alleged acts of

negligence. The contract does not contain any reference to the

County's negligence. Rather, the indemnification clause expressly

focuses on AECOM's negligence and only requires AECOM to indemnify

the   County   for   any   claims   or   damages   arising   from   AECOM's

negligence.




                                    24                              A-5272-15T4
     Moreover, there is no ambiguity in the contract with regard

to indemnification of the County for its own negligence. Even if

the indemnification clauses were ambiguous, any ambiguity must be

"strictly construed against the indemnitee." Kieffer, 205 N.J. at

223 (quoting Mantilla, 167 N.J. at 272).

     We   therefore   conclude     the    County   is    not   entitled     to

contractual indemnification for the attorney's fees the County

incurred in defending the claims asserted against the County based

on its own negligence.

                                   VI.

     The County also argues that it is entitled to common law

indemnification from Lucas and AECOM for the attorney's fees it

incurred in this lawsuit. Again, we disagree.

     In Central Motor, we held that "[a] common-law indemnitee,

forced to defend claims for which its liability is only vicarious,

is entitled not only to the cost of any judgment or reasonable

settlement,   but   also   to   costs    of   defense   occasioned   by   the

indemnitor's fault." 251 N.J. Super. at 9. However, "the right of

indemnity is granted only to those whose liability is secondary

and not primary, i.e., whose negligence is not morally culpable

but is merely constructive, technical, imputed or vicarious." Pub.

Serv. Elec. & Gas Co. v. Waldroup, 38 N.J. Super. 419, 432 (App.

Div. 1955). Moreover, common law indemnity is applicable only in

                                   25                                A-5272-15T4
the absence of an express agreement between parties. Promaulayko

v. Johns Manville Sales Corp., 116 N.J. 505, 511 (1989).

     Here,    the   Lucas    and     AECOM      contracts        establish    the

relationships between the parties with regard to indemnification.

As   we   have   determined,       the     County     is   not     entitled     to

indemnification under either contract for the costs it incurred

in defending claims asserted against the County for its own

negligence.

     Furthermore,   the     record       does   not   support     the   County's

assertion that it incurred the legal costs defending claims of

derivative or vicarious liability. Plaintiffs did not assert any

claims against the County for such liability. Therefore, the County

is not entitled to common law indemnification from Lucas or AECOM

for reimbursement of the counsel fees it incurred in this lawsuit.

     Finally, the County argues that under Azurak, Lucas owed it

contractual indemnity for the County's own negligence. We find the

County's arguments on this issue lack sufficient merit to warrant

discussion. R. 2:11-3(e)(1)(E).

     Affirmed.




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