A W.R. Berkley Corp. unit is not obligated to indemnify a masonry company for a worker who was injured in a construction accident based on the construction contract, a federal appeals court said Thursday, in affirming a lower court ruling.

W.R. Berkley unit Firemen’s Insurance Co. of Washington, D.C., was the insurer for Norfolk, Massachusetts-based MP Masonry Inc., according to Thursday’s ruling by the 2nd U.S. Circuit Court of Appeals in New York in Firemen’s Insurance Company of Washington, D.C. v. Thomas J. Story, Aerotek, Inc.

In 2012, Rochester-based Wegman Food Markets Inc. reached an agreement with staffing agency Hanover, Maryland-based Aerotek inc. to provide the supermarket chain with staffing services. 

Under that staffing agreement, Aerotek assigned Mr. Story to work as a foreman on a construction site where Wegmans was building a new store, the ruling said.

Wegmans later contracted with MP Masonry to perform construction work. Under its construction contract, MP Masonry agreed to defend, indemnify and hold harmless Wegmans and its agents, employees and representatives.

During the construction, an MP Masonry worker was injured at the construction site and sued Wegmans and Mr. Story, among others, in state court. Wegmans and Mr. Story tendered their claims to MP Masonry seeking to enforce the indemnification and defense provisions of its construction contract.

Firemen’s accepted the tender as to Wegmans, but not as to Mr. Story. It then filed suit in U.S. District Court in Rochester, seeking a declaratory judgment it was not obligated to defend and indemnify Mr. Story. Aerotek also filed a cross claim in the litigation.

The district court ruled in Firemen’s favor, and was affirmed by a unanimous three-judge appeals court panel. “In the Construction Contract, MP Masonry agreed to defend and indemnify Wegman’s ‘agents, employees and representatives,’” the ruling said.

“The staffing agreement explicitly provided that assigned employees – and Story was an assigned employee – were employees of Aerotek and not Wegmans.”

Even assuming there some ambiguity as to whether Story is entitled to indemnification, the language the parties used falls short of expressing the unmistakable intent required by New York law,” it said.

“Aerotek argues that it would be unreasonable to require that Story listed by name to be covered. That point is well-taken.

“But the indemnification clause is ambiguous not because it fails to list Story by name, but because it fails to include his role as foreman, construction, manager or member of the construction management team,” the decision said, in affirming the lower court ruling that Firemen’s and MP Masonry were not required to defend and indemnify Mr. Story.”

Berkley attorney Brian P. McDonough, founder and managing partner with McDonough Cohen & Maselek LLP in Boston, said in a statement, “The panel’s decision is a further acknowledgment of the significant burden that New York law imposes for establishing entitlement to contractual indemnification.

“The bottom line is that where, as here, parties choose to utilize ‘special employees’ – that is, temporary workers obtained from a staffing company – to perform work on a project, any intention that those ‘special employees’ be beneficiaries of a contractual indemnification clause needs to be explicitly stated.”

Aerotek’s and Mr. Story’s attorneys did not respond to a request for comment.

A federal appeals court last week affirmed a lower court ruling in favor of a Berkley unit in a coverage dispute with a developer in which the insurer said there was no claim under its property policy because nothing unintended had occurred.