Royal Insurance v. Whitaker Contracting

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
_______________ FEB 23 2001
THOMAS K. KAHN
CLERK
No. 99-12095
_______________
D. C. Docket No. 98-01704-CV-BU-S
ROYAL INSURANCE COMPANY
OF AMERICA, a.k.a. R.E. Grills
Construction Co., Inc.,
Plaintiff-Appellant,
versus
WHITAKER CONTRACTING CORP.,
Defendant-Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Alabama
______________________________
(February 23, 2001)
Before BIRCH, BARKETT and ALARCON*, Circuit Judges.
_______________________________
* Honorable Arthur L. Alarcon, U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
BIRCH, Circuit Judge:
This appeal presents the issue of whether an indemnitor must indemnify the
indemnitee when the underlying cause of action involves a nondelegable duty
under state law to which the indemnitee is subject. Specifically, this case concerns
whether a paving subcontractor should indemnify the insurer of the general
contractor with the state for highway work when a motorist died because of
obstructive barricades at the work site. The district judge granted summary
judgment to the subcontractor. Because we do not consider present Alabama law
to have resolved this precise issue, we certify the question to the Alabama Supreme
Court.
I. BACKGROUND
In November, 1993, R.E. Grills Construction Company, Inc. ("Grills") and
the State of Alabama entered into a contract for widening, including grading,
draining, and paving, 6.457 miles on Alabama Highway 75 in Blount County,
Alabama. This contract incorporated portions of the Alabama Highway
Department Standard Specifications for Highway Construction, 1992 Edition
("Standard Specifications"), which made Grills, as general or prime contractor,
responsible for placement and maintenance of construction warning signs,
barricades, and traffic control devices to insure public safety. These Standard
2
Specifications require that the general contractor, "shall assume full responsibility
for the continuous and expeditious maintenance of all construction warning signs,
barricades and other traffic control devices" and state that the general contractor "is
not relieved of his responsibility to continuously review and maintain all traffic
handling measures and insure himself that adequate provisions have been made for
the safety of the public and workmen. Construction signs and other traffic control
devices specified by plan details are considered the necessary requirements for
satisfactory traffic control."1 R1-1-3 (quoting Standard Specifications at §§
1
The Standard Specifications that specifically are a part of Grills contract with Alabama
provide:
All barricades . . . shall be kept clean, legible, and in their proper
position at all times. § 104.04(b)
[The Contractor] shall provide and maintain in a safe condition
temporary approaches or crossings and intersections with . . . roads
[and] streets . . . . The Contractor shall furnish, erect, and maintain
barricades, warning signs, delineators, flagmen, and pilot cars in
accordance with Section "G", of the "Alabama Manual on Uniform
Traffic Control Devises for Streets and Highways." § 104.04(d)
The Contractor shall at all times conduct his work so as to insure
the least possible obstruction to traffic. The safety and
convenience of the general public and residents along the highway
shall be provided for by the Contractor as specified under Article
104.04. § 107.07(a)
Materials and equipment on the right of way shall be so placed as
to insure minimum danger to the traveling public. § 107.07(b)
The Contractor shall provide, erect and maintain all necessary
barricades, suitable and sufficient lights, danger signals, signs, and
other traffic control devices; . . . and shall take all necessary
3
740.03(c) and (d), which were incorporated in the contract between Grills and
Alabama for the subject road work).
On July 7, 1994, Grills entered into a subcontract with defendant-appellee,
Whitaker Contracting Corporation ("Whitaker") for the paving of the portion of
highway under the work contract between Grills and Alabama. This Grills form
precautions for the protection of the work and safety of the public.
Highways or parts of the work closed to traffic shall be protected
by effective barricades . . . . No signs, barricades, lights or other
protective devices shall be dismantled or removed without the
permission of the Engineer. § 107.10
The location . . . and horizontal and vertical placement with respect
to the pavement of warning signs, barricades and other traffic
control devices shall be as required by the plan details, AMUTCD
and as directed or approved by the Engineer. The Contractor must
advise and have the approval of the Engineer prior to installing or
removing traffic control devices from the project. § 740.03(a)
The Contractor shall assume full responsibility for the continuous
and expeditious maintenance of all construction warning signs,
barricades and other traffic control devices . . . . All items used for
traffic control shall be generally maintained in its original
placement condition and such maintenance will be considered a
part of the original installation cost. § 740.03(c)
Reference is made to Section 107 of the Specifications which
covers the legal responsibilities of the Contractor to the traveling
public. Although the Department will be designating and directing
the placement of certain traffic control devices, the Contractor is
not relieved of his responsibility to continuously review and
maintain all traffic handling measures and insure himself that
adequate provisions have been made for the safety of the public
and workmen. Construction signs and other traffic control devices
specified by plan details are considered the necessary requirements
for satisfactory traffic control . . . . § 740.03(d)
R1-1-2-3 (alterations in original) (emphasis added).
4
subcontract contained an indemnity agreement by Whitaker regarding the work
that it performed for Grills. That agreement purported "to indemnify and . . .
exonerate" the contractor, Grills, "from all liability, claims and demands for bodily
injury and property damage arising out of the Work undertaken by the
Subcontractor . . . whether or not" such damage resulted "in whole or in part" from
"conditions, acts, or omissions done or permitted by the Contractor." R1-15-Exh.
E at 2 (quoting subcontract indemnity agreement between Grills and Whitaker).2
On April 11, 1996, Rhonda K. Chase was driving south on Highway 75 in
Blount County on the portion of the roadway that was undergoing widening
construction work pursuant to the contract between Grills and Alabama and the
paving subcontract between Grills and Whitaker. At the intersection of Highway
75 and County Road 1, Vicky Hood Washburn proceeded onto the highway in
Chase's path. Chase's vehicle collided into Washburn's vehicle; Chase
2
The indemnity agreement in the subcontract between Grills and Whitaker provides:
The Subcontractor covenants to indemnify and save
harmless and exonerate the Contractor and the Owner of and from
all liability, claims and demands for bodily injury and property
damage arising out of the Work undertaken by the Subcontractor,
its employees, agents or its subcontractors, and arising out of any
other operation no matter by whom performed for and on behalf of
the Subcontractor, whether or not in whole or in part to conditions,
acts or omissions done or permitted by the Contractor or Owner.
R1-15-Exh. E at 2.
5
subsequently died from the injuries that she sustained. At her deposition,
Washburn testified that the barricades, barrels, and equipment on the construction
site being paved obscured her ability to see north on Highway 75 and, thus, were
contributing causes of the accident.3 R1-15-Exh. I at 18, 28-29, 30-31, 35.
The administratrix of Chase's estate sued Whitaker, Washburn, and State
Farm Mutual Automobile Insurance Company, Washburn's insurance carrier, in
state court. The amended complaint added a negligence claim against Grills and
alleged that Grills breached its duty of ordinary care in repairing and paving the
intersection of Highway 75 and County Road 1 by failing to provide adequate
barricades, signs, and safety devices to protect the public. The ensuing discovery
revealed that the barricades that obstructed Washburn's view were traffic control
devices placed and maintained by Grills under the supervision of the Alabama
Department of Transportation. After initial placement on October 16, 1995, the
barricades were maintained at least thirteen feet from the traveled lanes of
Highway 75 until the date of the accident, when they were moved within three to
five feet of the traveled lanes of Highway 75. Whitaker performed paving work at
the subject intersection on the same day following the accident, and state
3
Washburn also testified that she had to lean forward on her steering wheel to attempt to
get a clear view of oncoming traffic from the north. R1-15-Exh. I at 33, 34, 226.
6
inspectors moved the barricades away from the involved traveled lanes of Highway
75 immediately after arriving at the accident scene. There is no direct evidence in
the record that Whitaker personnel moved the barricades.4
Prior to trial, the administratrix settled her claim against Whitaker for
$250,000 and her claim against Grills for $400,000, an amount paid by plaintiff-
appellant Royal Insurance Company of America ("Royal") under the terms of its
general liability insurance policy with Grills. Relying on Whitaker's indemnity
agreement in its subcontract with Grills, Royal then filed the underlying indemnity
case in federal court under 28 U.S.C. § 1332, diversity jurisdiction. In the course
of that litigation, David B. Nooney, Vice President of Grills with twenty-five years
of experience with road construction contracts, testified at his deposition that Grills
would be responsible under its contract with Alabama, even if an accident or injury
were caused by a subcontractor.5 Similarly, George S. Mahon, Jr., the Royal agent
4
Royal's George S. Mahon, Jr., who handled the settlement of the claim against Grills,
testified that there was no witness testimony or photographic evidence that Whitaker moved the
barricades at the accident scene. R1-15-Exh. J at 23-24. Additionally, he testified that the notes
that he received from his manager stated: "Co-defendant paving contractor should be dismissed,
as they were not there at the time." Id. at 41.
5
The relevant questions and Nooney's responses are as follows:
Q. . . . Having looked at that indemnity agreement, in your
practical opinion–or given your practical experience, in your
opinion, is the subcontractor required to indemnify the contractor
for bodily injury caused by the contractor's negligence?
A. No.
7
who handled the state litigation and settlement in this case and who had twenty
years of experience in handling insurance claims, testified at his deposition that the
ultimate liability that Grills had under its contract with Alabama was the reason for
settlement with Chase's estate.6
....
Q. . . . You understood, though, that Grills was responsible for this
job and under the contract with the State of Alabama in the
event–whether it was Whitaker or any other subcontractor that did
something that caused an accident, that Grills could be responsible
based on the contract that you had with the State of Alabama?
A. Yes.
R1-15-Exh. K at 14-15, 43 (emphasis added).
6
Pertinent portions of Mahon's deposition testimony are as follows:
Q. While you were handling the underlying lawsuit, were you
aware of the potential liability of Grills for not having enough
barricades or barrels at the subject intersection at the time of the
accident?
A. We were certainly aware of Grills' exposure to that type of
claim.
....
Q. Is that [the allegation that Grills negligently placed the
barricades and barrels originally irrespective of Whitaker's moving
them] something you factored in in deciding to settle the
underlying case?
A. Well, we were looking . . . at it from the standpoint that Grills,
as the general contractor, had the overall responsibility for what
happened out there, whether Grills was directly at fault or whether
one of its subs did it.
....
Q. What was your rationale for settling the case?
A. First off, Grills was the general contractor, and we had overall
responsibility. We had a fatality; there were low limits on the two
vehicles involved. We knew that the barricades had been moved;
they were definitely out of compliance with the State specs, and
that's basically it.
8
Whitaker moved for summary judgment and argued that Grills was
ultimately liable under its contract with Alabama for the roadwork. Finding no
material facts at issue, the district judge granted Whitaker summary judgment as to
its liability under the indemnity agreement. In this appeal, Royal argues that the
district judge failed to apply state indemnity law.
II. DISCUSSION
We review a district court's granting summary judgment de novo and apply
the same legal standards used by the district court. Hilburn v. Murata Elecs. N.
Am., Inc., 181 F.3d 1220, 1225 (11th Cir. 1999). Summary judgment is
appropriate when "there is no genuine issue as to any material fact and the moving
party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). While
....
Q. So it's your understanding that if one of Whitaker's contracting
trucks ran over a pedestrian that R.E. Grills would have to pay for
that?
A. Depends on the facts in the case, but ultimately, Grills could be
responsible.
....
Q. Thus Grills could have been exonerated with regard to the
allegations made by the Plaintiff pertaining to the initial placement
of the barricades but R.E. Grills could still be found liable as a
result of Whitaker Contracting's conduct based on the contract that
Grills had with the State of Alabama?
A. Absolutely.
R1-15-Exh. J at 17, 18, 22, 29, 52 (emphasis added).
9
factual issues and reasonable inferences therefrom are considered in favor of the
non-moving party, the district court's legal determinations are reviewed de novo.
Hilburn, 181 F.3d at 1225. "The interpretation of an insurance contract is a
question of law subject to de novo review." Galindo v. ARI Mut. Ins. Co., 203
F.3d 771, 774 (11th Cir. 2000). A federal court sitting in diversity must apply state
substantive law. Allison v. Vintage Sports Plaques, 136 F.3d 1443, 1445 (11th Cir.
1998) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817 (1938)). Thus,
"we are bound to decide the case the way it appears the state's highest court
would." Towne Realty, Inc. v. Safeco Ins. Co., 854 F.2d 1264, 1269 n.5 (11th Cir.
1988).
A. Nondelegable Duty of a General Contractor
While Alabama law generally does not hold a prime or general contractor
liable for independent acts of a subcontractor, the general contractor remains liable
to third parties under two exceptions: (1) the type of work performed, regardless of
the care and skill used, probably will cause damage, "'or is necessarily and
intrinsically dangerous'" or (2) "[t]he general contractor 'is responsible for the
manner of the performance of his nondelegable duties, though done by an
10
independent contractor.'"7 Clark v. Jackson, 549 So.2d 85, 86 (Ala. 1989)
(citations omitted). With respect to road construction involving excavations, the
Alabama Supreme Court stated that "our cases have long recognized that one
causing or initiating excavations on or about the public thoroughfares of this state
owes to the public a nondelegable duty to protect travelers from an unreasonable
risk of harm caused by the excavations." Sims v. Star-Mindingall Water Sys., 619
So.2d 1368, 1369 (Ala. 1993). In reversing a directed verdict for the general
contractor, the court confirmed the application of the nondelegable-duty exception
for safety of the roadway, although the plumbing subcontractor placed the dirt pile
into which the motorist collided in the roadway lane of travel. See id. Application
of Sims in this case shows that Grills cannot escape its nondelegable duty to insure
a safe roadway for the traveling public by arguing that the cause of Chase's
accident and death was Whitaker's placement of the barricades and barrels because
provision and maintenance of these warning objects was a necessary and integral
part of the road construction that Grills contracted to perform for Alabama. See id.Furthermore, Alabama's contract with Grills specifically created a
nondelegable duty in Grills, the general contractor, to maintain a safe roadway for
7
While both exceptions are applicable to this case, we conclude that the nondelegable-
duty exception is sufficient and dispositive as to Grills's ultimate responsibility for public
traveling safety on the portion of the roadway undergoing widening for the duration of the road
construction project.
11
the traveling public during the road construction work. In addition to requiring
Grills to provide and maintain safe intersections, to insure the least obstruction to
traffic, to place materials and equipment to insure minimum danger to the traveling
public, and to maintain the original placement of all barricades and other traffic
control devices, the contract expressly stated:
The Contractor shall assume full responsibility for the continuous and
expeditious maintenance of all construction warning signs, barricades
and other traffic control devices. . . . .[T]he Contractor is not relieved
of his responsibility to continuously review and maintain all traffic
handling measures and insure himself that adequate provisions have
been made for the safety of the public . . . .
R1-1-3; see Jones v. Power Cleaning Contractors, 551 So.2d 996, 998 (Ala. 1989)
("It is clear from the contract that the contractor . . . had a specific duty to provide a
safe workplace for the workmen. This duty did not end once the work had been
subcontracted."). The contract between Grills and Alabama imposed upon Grills a
nondelegable duty to inspect and to maintain continuously all traffic handling
measures to insure the safety of the traveling public. Because of its nondelegable
duty under its contract with Alabama, Grills remained responsible for placement of
the barricades, the moving of which obstructed Washburn's view and contributed
to her collision with Chase that resulted in Chase's death. Consequently, Grills
settled the case with Chase's administratrix for $400,000, which Royal paid. See
12
supra note 6 (Royal's agent Mahon testified that Grills, as general contractor,
settled the case because it had "overall responsibility").
B. Subcontract Indemnity Agreement
We have established that Grills had a nondelegable duty under its contract
with Alabama and state law to maintain the safety for the traveling public of the
roadway which it contracted to widen. This necessarily included the area which
Whitaker had been subcontracted to pave and which was the location of Chase's
fatal accident. In this appeal, we must decide whether the indemnification
agreement in Whitaker's subcontract with Grills entitles Royal to reimbursement
from Whitaker of the $400,000 plus interest, costs, and attorney's fees that it has
paid for Grills's settlement. Therefore, the issue to be resolved is whether Grills's
nondelegable duty to provide a safe roadway for the traveling public, which was
not stated specifically in the indemnity agreement, affects our analysis of this
agreement under which Royal proceeds for reimbursement.
The Alabama Supreme Court has decided that indemnity agreements
between private parties are valid where "the parties knowingly, evenhandedly, and
for valid consideration, intelligently enter into an agreement whereby one party
agrees to indemnify the other, including indemnity against the indemnitee's own
wrongs, if expressed in clear and unequivocal language." Industrial Tile, Inc. v.
13
Stewart, 388 So.2d 171, 176 (Ala. 1980). Nevertheless, the Alabama Supreme
Court subsequently clarified how strictly the "'clear and unequivocal language'" of
the indemnity agreement is to be construed. Brown Mech. Contractors, Inc. v.
Centennial Ins. Co., 431 So.2d 932, 945 (Ala. 1983) (quoting Industrial Tile, 388
So.2d at 176). "Agreements by which one party agrees to indemnify another for
the consequences of the other's acts or omissions are carefully scrutinized," and
such an agreement "is enforceable only if the indemnity provisions are
unambiguous and unequivocal." City of Montgomery v. JYD Int'l, Inc., 534 So.2d
592, 594 (Ala. 1988).
In Brown, the Alabama Supreme Court instructed that three factors are to be
considered by a court interpreting an indemnity agreement: (1) "contractual
language," (2) "identity of the draftsman of the language," and (3) "the
indemnitee's retention of control." Brown, 431 So.2d at 946. While particular
language in the indemnity agreement is not required, the requisite intent of the
parties must be clear.8 See id. at 945. Ambiguous language9 in an indemnity
8
The indemnity agreement that the Alabama Supreme Court upheld in Industrial Tile as
specifically requiring indemnification of the plant owner by an independent contractor for the
electrocution and injury of workers renovating its plant provided:
The Contractor [Industrial Tile] shall be solely responsible to indemnify and hold
harmless the Owner . . ., its agents, servants and employees, from and against any
and all claims, losses, suits, damages, judgments, expenses, costs and charges of
every kind and nature, whether direct or indirect, on account of or by reason of,
bodily injuries (including death) to any person or persons, including, but not
14
limited to its agents, servants and employees or other of the Owner, Contractor or
any subcontractor and injury to or destruction of property (including the loss of
use thereof) of the Owner, or others arising out of or occurring in connection with
the performance of the work to be done pursuant to the contract and whether or
not caused by or contributed to, or alleged to have been caused by or contributed
to, by the active, passive, affirmative, sole or concurrent negligence or breach of
any statutory duty, whether non-delegable or otherwise on the part of the owner
or its agents, servants or employees, or liability therefor imputed as a matter of
law to the owner and/or its agents, servants or employees or from the failure of or
any condition in materials or parts or faulty workmanship furnished by the
Owner, Contractor or any Sub-Contractor and/or their respective agents, servants
or employees pursuant to the Contract.
Industrial Tile, 388 So.2d at 175 (alteration in original) (emphasis added).
The indemnification contract language in Brown did not clearly and unequivocally state
an intent that the subcontractor indemnify the contractor for the contractor's negligence,
specifically, the failure to supervise its subcontractor's work. Brown, 431 So. 2d at 945-46. In
contrast, the indemnity agreement upheld in Industrial Tile specified in detail the acts or
omissions for which the independent contractor would indemnify the owner; relevant to this case
is inclusion of the indemnitee's breach of statutory or nondelegable duties. See id. at 945; see
also Crigler v. Salac, 438 So.2d 1375, 1386 (Ala. 1983) (per curiam) (finding that the subject
indemnification agreement did not clearly evidence an intent to indemnify against the
indemnitee's particular negligence and contrasting the language of the Industrial Tile
indemnification agreement, including the indemnification for the indemnitee's concurrent
negligence or breach of any statutory or nondelegable duty, which met "the clear indication
test").
The language of the indemnity agreement in Whitaker's subcontract with Grills does not
specifically obligate Whitaker to indemnify Grills for breach of its nondelegable duty to insure
the safety of the roadway as did the indemnity agreement in Industrial Tile, which specifically
included indemnity for nondelegable duties. Thus, we do not know whether "all liability, claims
and demands for bodily injury and property damage arising out of the Work undertaken by the
Subcontractor . . . whether or not in whole or in part to conditions, acts or omissions done or
permitted by the Contractor or Owner" encompasses the nondelegable duty that Grills had under
its underlying contract with Alabama and under state law to maintain the safety of the highway
under construction for the safety of the traveling public. R1-15-Exh. E at 2 (emphasis added).
We note that Grills's Vice President with twenty-five years of experience with road construction
contracts testified that Grills would not be entitled to indemnity by Whitaker on the language of
the indemnity agreement. See supra note 5. Experienced business establishments are capable of
agreeing with specificity regarding the coverage of indemnity agreements. See Humana Med.
Corp. v. Bagby Elevator Co., Inc., 653 So.2d 972, 975 (Ala. 1995) (recognizing that the
indemnity agreement between two business entities failed to include the specific language which
would be required for the indemnitee to be indemnified by the indemnitor).
15
agreement is construed against the drafter. See id. at 946.10 Finally, we must
consider "the degree of control retained by the indemnitee over the activity or
property giving rise to liability." Brown, 431 So.2d at 946; see City of
Montgomery, 534 So.2d at 595 ("The more control the indemnitee retains over the
area, the less reasonable it is for the indemnitor to bear the responsibility for
injuries that occur in that area.").11
9
Ambiguous contract language is susceptible of more than one meaning, while
unambiguous contract language clearly states one reasonable meaning. See Alfa Mut. Ins. Co. v.
Nationwide Mut. Ins. Co., 684 So.2d 1295, 1299-1300 (Ala. 1996).
10
Like the indemnity contract language at issue in Brown, the indemnity agreement in
Whitaker's subcontract with Grills occurs in Grills's preprinted form subcontract. See Brown,
431 So.2d at 946; R1-15-Exh. E. "When one seeks indemnification from another for damages
that were caused by his own negligence, strict construction of the indemnity agreement against
the contractor is particularly appropriate." Craig Construc. Co. v. Hendrix, 568 So.2d 752, 757
(Ala. 1990) (involving an almost identically worded indemnification agreement to the one in this
case); see Humana, 653 So.2d at 975 (distinguishing Industrial Tile because the subject
indemnity provision was ambiguous with respect to the indemnitor's indemnifying the
indemnitee for the consequences of the indemnitee's acts).
11
We are mindful that a public works contract, implicating policy issues, was the
underlying contract for which Grills subcontracted with Whitaker for the paving and that a
member of the public, not an employee of the contracting parties, died because of the failure of
Grills to execute its nondelegable duty of providing a safe roadway for the traveling public. The
Alabama Supreme Court has recognized that allowing "the indemnitee to transfer financial
responsibility to the indemnitor" when the indemnitee has ultimate control and responsibility for
the safety of the area where an accident occurred "would be totally at odds with the tort system's
incentives to encourage safety measures." City of Montgomery, 534 So.2d at 595.
16
The district judge concluded that the indemnity agreement in this case is
"ambiguous" and "grammatically meaningless."12 R1-20-5. Even if we were to
supply "due" under Alabama rules of contract construction13 to overcome the
ambiguity of the wording of the indemnity agreement at issue, as Royal suggests,
we cannot resolve this appeal because we do not have direction from the Alabama
12
As written, the questioned indemnity provision of the subcontract between Grills and
Whitaker states: "The Subcontractor covenants to indemnify and save harmless and exonerate
the Contractor and the Owner of and from all liability, claims and demands for bodily injury and
property damage arising out of the Work undertaken by the Subcontractor, its employees, agents
or its subcontractors, and arising out of any other operation no matter by whom performed for
and on behalf of the Subcontractor, whether or not in whole or in part to conditions, acts or
omissions done or permitted by the Contractor or Owner." R1-15-Exh. E at 2. The district judge
found that the clause "whether or not in whole or in part to conditions, acts or omissions done or
permitted by the Contractor or Owner" was nonsensical in the context of the indemnity
agreement/sentence because it "modifies the word 'Work.'" R1-20-5-6. This interpretation
results in liability for work done by Whitaker, the subcontractor, "to" actions or omissions done
by Grills, the contractor. The district judge stated that "[i]t is nonsense to state that a person
could actively 'do' an omission or that another person could perform work 'to' that omission." Id.
at 6. He concluded that "this construction of the indemnity clause would only permit
indemnification for claims arising out of the negligence of the subcontractor, not based on the
contractor's own negligence." Id.
13
Royal, the drafter, argues that Alabama rules of contract construction can be read to
permit supplying "due" in the challenged indemnity agreement to give the entire indemnity
provision meaning rather than making this omission the basis of the interpretive focus. See, e.g.,
Attorneys Ins. Mut. of Ala., Inc. v. Smith, Blocker & Lowther, P.C., 703 So.2d 866, 870 (Ala.
1996) ("Insurance contracts, like other contracts, are construed so as to give effect to the
intention of the parties, and, to determine this intent, a court must examine more than an isolated
sentence or term; it must read each phrase in the context of all other provisions."); Green v.
Merrill, 308 So.2d 702, 704 (Ala. 1975) ("It is well settled that the terms of an insurance policy
are to be given a rational and practical construction. . . . [P]rovisions of a policy which clearly
indicate the parties' real intent are not to be given a strained construction to raise doubts where
none exist." (citation omitted)). If "due" were inserted, as Royal urges, then the last clause of the
indemnity agreement would read: "whether or not in whole or in part [due] to conditions, acts or
omissions done or permitted by the Contractor or Owner," and the interpretive problem exposed
by the district judge would be rectified.
17
Supreme Court that this indemnity agreement would include indemnity for Grills's
failure to perform its nondelegable duty to insure a safe roadway for the traveling
public when this omission is not specifically stated in the indemnity agreement as
it was in Industrial Tile.14
Accordingly, we certify to the Supreme Court of Alabama pursuant to
Alabama Rule of Appellate Procedure 18 the following question:
MUST AN INDEMNITY AGREEMENT SPECIFICALLY STATE
THAT AN INDEMNITOR WILL INDEMNIFY THE INDEMNITEE
FOR A NONDELEGABLE DUTY TO WHICH THE INDEMNITEE
IS SUBJECT UNDER STATE LAW TO REQUIRE
INDEMNIFICATION FOR THE FAILURE TO EXECUTE SUCH
NONDELEGABLE DUTY, WHICH RESULTS IN THE
UNDERLYING CAUSE OF ACTION FOR WHICH
INDEMNIFICATION IS SOUGHT?
Our statement of the certified question is not meant to limit the scope of inquiry by
the Alabama Supreme Court. The entire record in this case, together with the
parties' briefs, are to be transmitted herewith.
14
We recognize that Industrial Tile did not concern the omission of a nondelegable duty.
Nevertheless, the Industrial Tile indemnity agreement, approved by the Alabama Supreme Court,
was explicit in detailing the acts or omissions to which indemnity applied. We have not found
an Alabama Supreme Court case involving the fact situation present in this appeal of an
underlying cause of action that results from failure to perform a nondelegable duty under state
law for which indemnity is sought.
18
QUESTION CERTIFIED.
19