Wildcat Drilling, L.L.C. v. Discovery Oil & Gas, L.L.C. , 2023 Ohio 3398 ( 2023 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Wildcat Drilling, L.L.C. v. Discovery Oil & Gas, L.L.C., Slip Opinion No. 2023-Ohio-3398.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2023-OHIO-3398WILDCAT DRILLING , L.L.C., APPELLEE, v. DISCOVERY OIL AND GAS, L.L.C.,
APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Wildcat Drilling, L.L.C. v. Discovery Oil & Gas, L.L.C., Slip
Opinion No. 2023-Ohio-3398.]
Contracts—Indemnification—When parties have entered into a contract containing
an express indemnification provision, common-law notice requirements set
forth in Globe Indemn. Co. v. Schmitt do not apply and the parties are
bound by the terms of their contract—Court of appeals’ judgment reversed.
(No. 2022-0596—Submitted March 1, 2023—Decided September 27, 2023.)
APPEAL from the Court of Appeals for Mahoning County,
No. 21 MA 0070, 2022-Ohio-1125.
__________________
FISCHER, J.
{¶ 1} For the second time, we accept a discretionary appeal filed by
appellant, Discovery Oil and Gas, L.L.C. (“Discovery”), to determine whether an
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express indemnification provision in its contract with appellee, Wildcat Drilling,
L.L.C. (“Wildcat”), evinces a clear intent by the parties to abrogate the common-
law notice requirements for indemnification set forth in Globe Indemn. Co. v.
Schmitt, 142 Ohio St. 595, 53 N.E.2d 790 (1944). We hold that when the parties
have entered into a contract containing an express indemnification provision, the
common-law notice requirements set forth in Globe Indemn. Co. do not apply and
the parties are bound by the terms of their contract. In so holding, we reject the
lead opinion of this court in Wildcat Drilling, L.L.C. v. Discovery Oil & Gas,
L.L.C., 164 Ohio St.3d 480, 2020-Ohio-6821, 173 N.E.3d 1156, ¶ 17 (“Wildcat II”).
We therefore reverse the judgment of the Seventh District Court of Appeals, vacate
the trial court’s judgment that was issued following this court’s decision in Wildcat
II, and reinstate the trial court’s original determination of the indemnification issue
that was issued prior to this court’s decision in Wildcat II.
I. Background
A. Discovery demands indemnification from Wildcat for its payment of a $50,000
fine
{¶ 2} Discovery entered into a contract with Wildcat in which Wildcat
agreed to drill an oil and gas well for Discovery. Under the contract, Wildcat was
required to indemnify Discovery for its payment of any fine or penalty imposed as
a result of pollution or contamination related to the well-drilling operations:
17. Responsibility for Loss or Damage.
***
17.9. Pollution and Contamination – Notwithstanding
anything in this Contract to the contrary, excepting only Paragraph
13, it is understood and agreed by and between [Wildcat] and
[Discovery] that the responsibility for pollution and contamination
shall be as follows:
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17.9.1 [Wildcat’s] Liability – [Wildcat] shall assume full
responsibility for and shall defend, indemnify, and hold [Discovery]
and its joint owners harmless from and against any loss, damage,
expense, claim, fine and penalty, demand, or liability for pollution
or contamination, including control and removal thereof, that
originates on or above the surface of the land or water from spills,
leaks, or discharges of motor fuels, lubricants, and oils; pipe dope;
paints and solvents; ballast, bilge, sludge, and garbage; and other
liquids or solids in possession and control of [Wildcat]. These
obligations are assumed without regard to the negligence of any
party or parties.
***
17.11. Indemnity Obligations – Except as otherwise
expressly limited in this Contract, it is the intent of the parties hereto
that all indemnity obligations and/or liabilities assumed by such
parties under the terms of this Contract be without limit and without
regard to the cause or causes thereof (including pre-existing
conditions), strict liability, or the negligence of any party or parties,
whether such negligence be sole, joint or concurrent, active or
passive. The terms and provisions of Paragraphs 17.1 through
17.10, however, shall have no application to the claims or causes of
action asserted against [Discovery] or [Wildcat] by a person or
entity not a party hereto by reason of any agreement of indemnity
with such person or entity.
(Boldface and underlining sic.) Wildcat began drilling an oil and gas well for
Discovery in late 2014.
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{¶ 3} The Ohio Department of Natural Resources, Division of Oil & Gas
Resources Management (“ODNR”) notified Discovery that Wildcat had violated
Ohio law by improperly using brine in its drilling operations. Discovery negotiated
with ODNR and agreed to pay a $50,000 fine. Discovery then demanded that
Wildcat indemnify it under the terms of their contract for its payment of the fine.
Wildcat refused.
{¶ 4} The parties sued each other for breach of contract and filed competing
motions for summary judgment. Discovery argued that Wildcat was required under
the terms of the contract to indemnify it for its satisfaction of the fine imposed by
ODNR. Wildcat maintained that it was not required to indemnify Discovery,
because it never received notice of the ODNR claim as required by Globe Indemn.
Co., 142 Ohio St. 595, 53 N.E.2d 790, before Discovery agreed to settle the claim.
{¶ 5} The trial court determined that no genuine issues of material fact
existed, and it granted summary judgment on the indemnification issue in
Discovery’s favor. The trial court determined that Wildcat had breached the terms
of the contract by causing Discovery to pay a fine to ODNR as a result of Wildcat’s
drilling practices. The trial court further determined that Wildcat had known about
the compliance issues with ODNR and therefore could not claim it did not have an
opportunity to challenge the ODNR claim before Discovery’s payment of the fine.
Finally, the trial court determined that Wildcat had produced no evidence to dispute
ODNR’s findings that it had illegally used brine in its drilling practices. The trial
court thus held that Discovery was entitled to indemnification from Wildcat.
B. The parties appeal to the Seventh District Court of Appeals
{¶ 6} Both Discovery and Wildcat appealed the trial court’s judgment to the
Seventh District. On the indemnification issue, Wildcat asserted that the trial court
erred in determining that it was required to indemnify Discovery, because
Discovery had not provided notice of the ODNR claim to Wildcat and the fine paid
by Discovery was grossly excessive. Discovery emphasized that the parties’ rights
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were governed by their contract and that the cases cited by Wildcat—Globe
Indemn. Co. and its progeny—were inapplicable.
{¶ 7} The Seventh District found that the common-law notice requirements
for indemnification set forth in Globe Indemn. Co., 142 Ohio St. 595, 53 N.E.2d
790, applied and determined that Discovery could be entitled to indemnification
only if (1) it had given proper and timely notice to Wildcat of the ODNR claim, (2)
it was legally liable to respond to the settled claim, and (3) the settlement was fair
and reasonable. Wildcat Drilling, L.L.C. v. Discovery Oil & Gas, L.L.C., 2018-
Ohio-4015, 121 N.E.3d 65, ¶ 61, 69 (7th Dist.) (“Wildcat I”). Because Discovery
had not notified Wildcat of the ODNR claim or of its intent to settle the claim, the
court of appeals held that Discovery was not entitled to indemnification, and it
reversed the trial court’s judgment on that issue. Id. at ¶ 69-71.
C. Discovery appeals to this court
{¶ 8} Discovery appealed to this court. See 155 Ohio St.3d 1463, 2019-
Ohio-1817, 122 N.E.3d 1285. In a fractured decision, a plurality of this court
determined that the common-law notice requirements for indemnification set forth
in Globe Indemn. Co. are inapplicable only when the parties “evince[] a clear
intent” to deviate from those requirements. Wildcat II, 164 Ohio St.3d 480, 2020-
Ohio-6821, 173 N.E.3d 1156, at ¶ 15. The lead opinion explained that a clear intent
to abrogate the common-law notice requirements set forth in Globe Indemn. Co.
does not require “talismanic or magical language,” but it does require more than
simply including an indemnity clause in the contract. Wildcat II at ¶ 15-18. The
court reversed the Seventh District’s decision in Wildcat I and remanded the matter
to the trial court to consider whether under the plain language of the contract, the
parties expressed a “clear intent” to abrogate the common-law notice requirements.
Wildcat II at ¶ 18.
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D. On remand, the lower courts conclude that the contract language does not
express a clear intent by the parties to abrogate the common-law notice
requirements for indemnification
{¶ 9} On remand, Wildcat moved for summary judgment in the trial court,
claiming that the contract’s language did not express a clear intent by the parties to
abrogate the common-law notification requirements for indemnification. Thus,
Wildcat argued that Discovery was required to give Wildcat notice of the ODNR
claim before settling the claim and that because it did not do so, Discovery’s claim
for indemnity must be dismissed.
{¶ 10} Discovery opposed Wildcat’s motion for summary judgment. It
argued that a genuine issue of material fact existed regarding whether the parties
intended to abrogate the common-law notice requirements and whether Discovery
had satisfied those requirements. Discovery maintained that its contract with
Wildcat did not need to contain an explicit rejection of the common-law notice
requirements to abrogate the common law.
{¶ 11} After reviewing the contract between Discovery and Wildcat, the
trial court found no indication that the parties unequivocally stated that they
intended to abrogate Ohio’s common-law notice requirements for indemnification.
The court further found that because the parties made no reference to Globe
Indemn. Co., 142 Ohio St. 595, 53 N.E.2d 790, in the contract, it was unclear
whether the parties had intended to waive those requirements. The court granted
Wildcat’s motion for summary judgment.
{¶ 12} On appeal, the Seventh District affirmed the trial court’s judgment.
2022-Ohio-1125, ¶ 2 (“Wildcat III”). The appellate court determined that the
contract between Wildcat and Discovery contained no reference concerning the
parties’ rights to settle disputes without first providing notice of the claim to the
other party. Id. at ¶ 38. It noted that the “without limit” language in paragraph
17.11 of the contract did not clearly indicate that indemnification would be made
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for a voluntary settlement irrespective of the common-law notice requirements. Id.
Additionally, the appellate court found that the presence of a duty-to-defend clause
in paragraph 17.9.1 of the contract implied that notice of a claim would be required.
Id. at ¶ 39. Therefore, the appellate court concluded that the parties did not evince
in their contract a clear intent to abrogate the common-law notice requirements for
indemnification set forth in Globe Indemn. Co., but rather, the contract terms
implied that notice of a voluntary settlement was a condition precedent to
indemnification. Wildcat III at ¶ 40.
II. Analysis
{¶ 13} Discovery appealed to this court, and we accepted the appeal to
consider Discovery’s first proposition of law: “Contractual clauses that specify that
they are only limited by the terms of the contract itself evince a clear intent to
abrogate common law.” See 167 Ohio St.3d 1470, 2022-Ohio-2633, 191 N.E.3d
446. This proposition of law presents a question of law that we review de novo.
See Long Beach Assn., Inc. v. Jones, 82 Ohio St.3d 574, 576, 697 N.E.2d 208(1998).
A. A contract that includes an express indemnification provision evinces a clear
intent by the parties to abrogate the common law
{¶ 14} In Ohio, parties “have a fundamental right to contract freely with the
expectation that the terms of the contract will be enforced.” Nottingdale
Homeowners’ Assn., Inc. v. Darby, 33 Ohio St.3d 32, 36, 514 N.E.2d 702 (1987);
see also Wilborn v. Bank One Corp., 121 Ohio St.3d 546, 2009-Ohio-306, 906
N.E.2d 396, ¶ 8; Blount v. Smith, 12 Ohio St.2d 41, 47, 231 N.E.2d 301 (1967).
“This freedom ‘is as fundamental to our society as the right to speak without
restraint.’ ” Nottingdale Homeowners’ Assn., Inc. at 36, quoting Blount at 47.
{¶ 15} Parties to a contract may include terms in derogation of the common
law, but the intent to do so must be clearly indicated. Cheatham I.R.A. v.
Huntington Natl. Bank, 157 Ohio St.3d 358, 2019-Ohio-3342, 137 N.E.3d 45, ¶ 30;
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see also Alyeska Pipeline Serv. Co. v. Wilderness Soc., 421 U.S. 240, 256, 95 S.Ct.
1612, 44 L.Ed.2d 141 (1975) (“absent statute or enforceable contract, litigants pay
their own attorneys’ fees”). This includes contracting for specific indemnity
protections.
{¶ 16} Indemnity “is the right of a person, who has been compelled to pay
what another should have paid, to require complete reimbursement.” Worth v.
Aetna Cas. & Sur. Co., 32 Ohio St.3d 238, 240, 513 N.E.2d 253 (1987); see also
Reynolds v. Physicians Ins. Co. of Ohio, 68 Ohio St.3d 14, 16, 623 N.E.2d 30(1993). In cases of implied indemnity (i.e., common-law indemnity), the rights of
the parties arise from the negligent or otherwise tortious act of another. Maryland
Cas. Co. v. Frederick Co., 142 Ohio St. 605, 607, 53 N.E.2d 795 (1944), citing 31
Corpus Juris 447, Section 47. “ ‘This right of indemnity is based upon the principle
that every one is responsible for his own negligence, and if another person has been
compelled by the judgment of a court having jurisdiction to pay the damages which
ought to have been paid by the wrongdoer they may be recovered from him.’ ” Id.,quoting 31 Corpus Juris, 447, Section 47.
{¶ 17} Express indemnity, however, is based on a written agreement or
contract in which one party (the indemnitor) promises to indemnify another party
(the indemnitee) for payments it makes under circumstances set forth in the
agreement or contract. See Worth at 240. And the nature of the indemnity
relationship is determined by the intent of the parties, as expressed by the language
used in the agreement or contract. Id. When the indemnitor expressly agrees to
indemnify an indemnitee, the indemnitor is obligated to do so under the terms of
the agreement or contract. Allen v. Std. Oil Co., 2 Ohio St.3d 122, 443 N.E.2d 497(1982), paragraph one of the syllabus. Therefore, when parties have entered into
an agreement or contract that includes an indemnification clause, unless that clause
is ambiguous or otherwise unlawful, it will be applied as written because the
agreement or contract governs the rights of the parties. This straightforward rule
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ensures that the parties can fully understand and protect their rights under the
agreement or contract.
{¶ 18} Therefore, we conclude that the inclusion of an indemnification
provision in a contract shows clear intent by the parties to deviate from the common
law and thus the parties are not required to also include an express statement in the
contract abrogating the common law for the common law not to apply. See
Diamond Transp. Logistics, Inc. v. Kroger Co., Inc., __ F.Supp.3d __, __, 2023
WL 34688, *11-12 (S.D.Ohio 2023) (federal district court concluded that an
express indemnification provision in an agreement between parties indicated the
parties’ “clear intent to step away from the common-law framework” even though
the common-law notice requirements for indemnification were not explicitly
referred to in the agreement). In this case, the indemnification provision in the
contract between Wildcat and Discovery contains no notice requirement in relation
to the voluntary settlement of a claim. Thus, based on the plain language of the
contract, Discovery was not required to give Wildcat notice of the ODNR claim
before its voluntary settlement of that claim. This should end the analysis.
B. The language of the contract evinces the parties’ clear intent to abrogate the
common-law notice requirements for indemnification
{¶ 19} However, even assuming arguendo that the existence of the express
indemnification provision was not enough to clearly demonstrate an intent to
abrogate the common law, the various provisions in the contract and the broad
language used by the parties support the conclusion that they intended to depart
from the common-law notice requirements for indemnification set forth in Globe
Indemn. Co., 142 Ohio St. 595, 53 N.E.2d 790.
{¶ 20} We determine the intent of the parties to a contract from the language
used in the contract, and “there can be no intendment or implication inconsistent
with the express terms thereof.” Latina v. Woodpath Dev. Co., 57 Ohio St.3d 212,
214, 567 N.E.2d 262 (1991). Therefore, we look to the plain language of the
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contract to determine whether the parties in this case intended to depart from the
common-law notice requirements set forth in Globe Indemn. Co.
{¶ 21} Wildcat’s duty to indemnify Discovery is broad. In paragraph 17.9.1
of the contract, the parties agreed that Wildcat “shall assume full responsibility for
and shall defend, indemnify, and hold [Discovery] harmless from and against any
loss, damage, expense, claim, fine and penalty, demand, or liability for pollution or
contamination.” (Emphasis added.) And in paragraph 17.11, the parties agreed
that “all indemnity obligations and/or liabilities” are “without limit and without
regard to the cause or causes thereof.” (Emphasis added.) The terms in neither of
these paragraphs required Discovery to provide Wildcat with notice of the ODNR
claim or its intent to enter into a voluntary settlement with ODNR.
{¶ 22} Additionally, the phrase “[a]ny loss” as used in the contract means
exactly that—any loss—and the contract does not contain conditions or qualifiers
regarding the type of loss. In interpreting contracts, we must give words their
clearly intended meaning. See Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d
241, 245-246, 374 N.E.2d 146 (1978). The contract at issue here does not qualify
this indemnity responsibility, and we will not add any such requirements to the
contract. See Glaspell v. Ohio Edison Co., 29 Ohio St.3d 44, 48, 505 N.E.2d 264(1987).
{¶ 23} After reviewing the two indemnification paragraphs in the contract
between Wildcat and Discovery, we find that the plain language of the contract is
clear—it does not matter that Discovery did not provide Wildcat with notice of the
ODNR claim before it entered into a voluntary settlement of that claim, because
Wildcat is required to indemnify Discovery for liabilities arising from the well-
drilling violation under the broad language in the contract.
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C. Wildcat and Discovery knew how to include a notice provision for
indemnification in the contract if they had desired one
{¶ 24} The parties’ intention to abrogate the common-law notice
requirements for indemnification is also evidenced by their inclusion of notice
provisions in other areas of the contract. “Expressio unius est exclusio alterius is
an interpretative maxim meaning that if certain things are specified in a law,
contract, or will, other things are impliedly excluded.” State ex rel. Paluf v. Feneli,
69 Ohio St.3d 138, 143, 630 N.E.2d 708 (1994). Essentially, had the parties wanted
to include a notice provision regarding indemnification for payment of a voluntary
settlement, they knew how to do so and would have done so.
{¶ 25} Here, the contract at issue includes several provisions that require
one party to provide written notice to the other party before acting, such as (1) for
early termination of the contract, (2) for payment of liquidated damages for
termination of the contract, (3) for cancelling or materially changing insurance
coverage, and (4) for force majeure. Nowhere in the contract do the parties agree
that either party must provide the other with notice of a claim before entering into
a voluntary settlement of that claim in order to exercise its indemnification rights.
Therefore, under the maxim expressio unius est exclusio alterius, the parties’
decision to omit a notice provision in the indemnification paragraphs of the contract
supports the conclusion that they did not intend to require that such notice be
provided. This is especially true since notice provisions are conditions precedent
and they are not to be implied lightly. See M3 Producing, Inc. v. Tuggle, 2017-
Ohio-9123, 91 N.E.3d 805, ¶ 14 (5th Dist.) (“A condition precedent is a condition
that must be performed before the obligations in the contract become effective”).
D. The duty to defend is separate and distinct from the duty to indemnify
{¶ 26} Lastly, we reject Wildcat’s argument that Discovery’s failure to
provide notice of the ODNR claim before its voluntary settlement of that claim is
inconsistent with Wildcat’s duty to defend—an argument that was accepted by the
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Seventh District, see Wildcat III, 2022-Ohio-1125, at ¶ 39. We recognize that
Wildcat did not raise this argument at any time in the lower courts prior to appealing
to this court in Wildcat II. Additionally, Wildcat did not allege in its complaint that
Discovery had breached the contract by eliminating Wildcat’s duty to defend when
it failed to provide adequate notice of the ODNR claim before entering into a
voluntary settlement. Thus, Wildcat’s arguments concerning notice and its duty to
defend under the contract were not preserved and should not have been entertained
on appeal following remand. See Ohio Power Co. v. Burns, 171 Ohio St.3d 84,
2022-Ohio-4713, 215 N.E.3d 527, ¶ 40 (plain-error review of forfeited arguments
is limited to extremely rare cases involving exceptional circumstances in which the
error essentially challenges the legitimacy of the judicial process).
{¶ 27} But even if we address the issue whether notice of a claim is implied
in the duty to defend, our determination of the issue would not matter here, because
“[t]he duty to defend is separate and distinct from the duty to indemnify,” W. Lyman
Case & Co. v. Natl. City Corp., 76 Ohio St.3d 345, 347, 667 N.E.2d 978 (1996).
See also Ohio Govt. Risk Mgt. Plan v. Harrison, 115 Ohio St.3d 241, 2007-Ohio-
4948, 874 N.E.2d 1155, ¶ 19 (“insurer’s duty to defend is broader than and distinct
from its duty to indemnify”). As stated before, Wildcat did not sue Discovery for
a breach of contract concerning its duty to defend. And Wildcat’s indemnity
obligations set forth in the contract are listed separately from its defense
responsibilities. Therefore, in this case, we cannot conclude that Wildcat’s duty to
defend under the contract gives rise to a mandatory notice requirement of a claim
before entering into a voluntary settlement.
III. Conclusion
{¶ 28} We hold that Wildcat II was wrongly decided and that the
requirements announced in Globe Indemn. Co., 142 Ohio St. 595, 53 N.E.2d 790,
for determining whether an indemnitee may recover from an indemnitor when the
indemnitee has settled a claim without the indemnitor’s involvement do not apply
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when the parties’ rights are governed by an indemnification provision in a contract.
Furthermore, we find that the indemnification provision in the contract between
Wildcat and Discovery evinces a clear intent by the parties to deviate from the
common-law notice requirements for indemnification. Therefore, we reverse the
judgment of the Seventh District Court of Appeals, vacate the judgment of the trial
court that was issued following this court’s decision in Wildcat II, and reinstate the
trial court’s original determination, which was issued prior to this court’s decision
in Wildcat II, that Discovery is entitled to indemnification from Wildcat for its
payment of the fine imposed by ODNR.
{¶ 29} We recognize that some people may consider this result unfair or
inequitable. But we must emphasize that “[i]t is not the responsibility or function
of this court to rewrite the parties’ contract in order to provide for a more equitable
result.” Hope Academy Broadway Campus v. White Hat Mgt., L.L.C., 145 Ohio
St.3d 29, 2015-Ohio-3716, 46 N.E.3d 665, ¶ 37. Nor is it the responsibility of this
court to revive on appeal the parties’ forfeited arguments. Absent fraud or other
unlawfulness by one or more parties, courts are powerless to save a competent party
from the effects of that party’s own voluntary agreement. See id.Judgment reversed.
KENNEDY, C.J., and DEWINE and DETERS, JJ., concur.
DONNELLY, J., dissents, with an opinion.
STEWART, J., dissents, with an opinion joined by BRUNNER, J.
_________________
DONNELLY, J., dissenting.
{¶ 30} This case should be resolved by applying “the imminently practical
and reasonable requirements for indemnification set forth in Globe Indemn. Co. [v.
Schmitt, 142 Ohio St. 595, 53 N.E.2d 790 (1944)].” Wildcat Drilling, L.L.C. v.
Discovery Oil & Gas, L.L.C., 164 Ohio St.3d 480, 2020-Ohio-6821, 173 N.E.3d
1156, ¶ 44 (Donnelly, J., dissenting). Instead, the majority opinion proffers one
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unreasonable justification after another to rationalize what it admits may be an
unfair conclusion. Each rationale given by the majority in support of its
determination can be rejoined with the same sentence: Discovery didn’t do that,
because it reasonably believed that this court’s holding in Globe Indemn. Co.
applied to the indemnification provision in the contract at issue here and would
protect it.
{¶ 31} For decades, the common law (and common sense) required those
intending to seek indemnification after entering into a voluntary settlement to
provide timely notice to the one from which indemnity is sought. See Globe
Indemn. Co. at 604. Today’s majority opinion needlessly eviscerates this aspect of
the common law. I dissent.
_________________
STEWART, J., dissenting.
{¶ 32} The trial court and the Seventh District Court of Appeals applied the
law to this case as instructed by this court in Wildcat Drilling, L.L.C. v. Discovery
Oil & Gas, L.L.C., 164 Ohio St.3d 480, 2020-Ohio-6821, 173 N.E.3d 1156, ¶ 17,
and both courts reached a logical conclusion based on the facts of the case. Yet the
majority rejects the court of appeals’ analysis and eschews our prior holding, using
this appeal as an opportunity to impose the result advocated for in the first
dissenting opinion in Wildcat. See id. at ¶ 32-42 (Fischer, J., dissenting). So at best
here, the majority merely substitutes the reasoning of the prior dissenting opinion
in place of the legal analyses conducted by the trial and appellate courts, ostensibly
correcting what the majority perceives to be error. I would instead dismiss this case
as having been improvidently accepted.
{¶ 33} This is the second time we have accepted an appeal in this case for
discretionary review. 155 Ohio St.3d 1463, 2019-Ohio-1817, 122 N.E.3d 1285;
167 Ohio St.3d 1470, 2022-Ohio-2633, 191 N.E.3d 446. In our first decision, we
remanded the case to the trial court for it to “consider whether the parties intended
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to abrogate the common-law requirements on indemnification.” Wildcat at ¶ 17.
And on remand, the lower courts did just that. The trial court and the court of
appeals each concluded that the parties’ contract did not clearly evince an intent to
abrogate the common-law principles on indemnification. Mahoning C.P. No. 15
CV 1959 (June 30, 2021); 2022-Ohio-1125, ¶ 2, 38. Simply put, the lower courts
followed this court’s instructions and interpreted the parties’ contract accordingly.
So, this case should be dismissed as having been improvidently accepted because
even if the majority had determined only that the case was wrongly decided on
remand, our role is not to engage in error correction. See State v. Barnes, __ Ohio
St.3d __, 2022-Ohio-4486, __ N.E.3d __, ¶ 48 (Fischer, J., dissenting) (“if this court
is not going to provide clarity to a well-settled area of the law or guide the lower
courts on how to conduct an analysis, then the case should be dismissed as having
been improvidently accepted”).
{¶ 34} This court has already provided clarity to the lower courts in this
area of the law, and we provided clear instructions to the lower courts in this case
specifically: look to the parties’ contract to determine if they have abrogated the
common-law notice requirements set forth in Globe Indemn. Co. v. Schmitt, 142
Ohio St. 595, 53 N.E.2d 790 (1944). See Wildcat at ¶ 17. While the majority’s
decision today is arguably just as clear in that it is an outright rejection of this
court’s holding in Wildcat, this abrupt turn-on-a-dime decision does nothing to aid
in the analysis of contract interpretation against the backdrop of well-established
principles of common law in this area.
{¶ 35} The lower courts followed the instructions set forth by this court in
Wildcat, 164 Ohio St.3d 480, 2020-Ohio-6821-173, N.E.3d 1156, and reached a
logical conclusion based on the facts of the case and the language of the contract.
There is no reason to disturb that rational result and replace it with a blanket
rejection of the well-established common-law principles simply because a contract
is involved—regardless of whether the language of the contract evidences a clear
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intent to do so. Because this appeal involves, at best, nothing more than error
correction, it should be dismissed as having been improvidently accepted.
Therefore, I dissent.
BRUNNER, J., concurs in the foregoing opinion.
_________________
Johnson & Johnson Law Firm and Molly K. Johnson, for appellee.
Manchester Newman & Bennett, L.P.A., David A. Detec, Thomas F. Hull
II, and Karly B. Johnson, for appellant.
_________________
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