Oakes v. Monongahela Power Company , 158 W. Va. 18 ( 1974 )

Neely, Justice,

dissenting-.

I respectfully dissent from the majority opinion on the grounds that the third party action was susceptible to summary judgment because the sole issue was the interpretation of the indemnity provisions of the contract between the power companies and Union Boiler. The pertinent parts of that contract provide as follows:

“2. RESPONSIBILITY: Seller [Union Boiler] shall at all times be an independent contractor and responsible for all acts and omissions of its agents, employees,... No act or order of Buyer shall be deemed to be the exercise of supervision or control of performance hereunder.

“12. INDEMNIFICATION: Seller shall indemnify, save harmless, and defend Buyer from all claims, losses, liabilities, and expenses arising out of the bodily injury, death, or damage to property occurring in connection with any act or omission of Seller, its agents, employees, representatives, or subcontractors.

“17. SAFETY: Seller [Union Boiler] shall provide and maintain safe places of work for its employees and shall comply with all requirements of public authorities with respect thereto....

“19. INSURANCE: Prior to rendering any service hereunder, Seller shall at its own expense procure and thereafter keep in effect until the service has been performed, general comprehensive liability insurance ... providing limits of not less than $100,000 per person and $300,000 per occurrence for bodily injury and death....”

I would respectfully suggest that the factual situation in Sellers v. Owens-Illinois Glass Co., W. Va., 191 S.E.2d 166 (1972) is distinguishable from the case before us because the contract in Sellers was completely different from the contract in the case at bar. Certainly the entry by the Oakes into the hot fly ash was an act of Sellers’ employees, although the Oakes did not intend it and a jury found that the Oakes were not guilty of contributory negligence. Their action clearly comes within the plain meaning of the phrase “act or omission of Seller, its agents, employees, representatives, or subcontractors.” The controlling point of law is stated in syllabus point 1 of Sellers which says: “Contracts of indemnity against one’s own negligence do not contravene public policy and are valid.”

Both Union Boiler and the power companies are large corporations with expertise in transactions of this nature. In a major construction project where the question of liability has been raised in the contract the interrelationships are so complex that the relevant issue is the intended allocation of risk rather than traditional concepts of “sole proximate cause” or “negligence.” This case is exclusively concerned with the interpretation of a contract in which the parties deliberately attempted to allocate loss from all personal injuries among themselves and their insurers. The quoted provision in the contract with respect to insurance indicates an intent of the parties that Union Boiler purchase insurance for the specific purpose of protecting the power companies, and the purport of all the quoted sections indicates that it was the intent of the parties that Union Boiler undertake the risk of any loss attendant upon the construction.

In the area of tort law concerned with personal injuries it is common experience that human compassion frequently engenders substantial judicial caprice. Judicial caprice precipitated by result orientation, erroneous findings of fact, or erroneous conclusions of law, is an element of risk against which any intelligent business insures. An errant judicial process may as surely ravage a business as any tornado or other natural disaster. Accordingly it is appropriate for contracts to provide for indemnification regardless of judicial findings of negligence or sole proximate cause.

As the plain meaning of the contract provisions is to shift the risk of loss for all personal injuries from the power companies to Union Boiler, and more particularly from the power companies to Union Boiler’s insurer, I am of the opinion that summary judgment in favor of the power companies on the basis of the indemnification agreement was proper and that the judgment of the lower court should be affirmed.