Davis v. Dembek

{¶ 64} I dissent from the majority decision only in that the majority affirms the trial court's ruling that plaintiff and Katie Davis must indemnify Metropolitan for any amounts it pays in the wrongful death action.

{¶ 65} The amount of $100,000 was available from Metropolitan for the survivorship claim and this amount has been paid to plaintiff and Katie Davis. It appears there is an additional $100,000 available from Metropolitan for wrongful death claims. The wording of the settlement agreement under section E, which contains the indemnification language, would indicate that it was intended to target subrogation claims on the survivorship claims as well as on any wrongful death claims of the releasors. The indemnification language in this agreement, however, does not cover wrongful death claims of next of kin who did not sign the release.

{¶ 66} It cannot be disputed that the settlement agreement refers to indemnification. It is stated in section E that releasors will indemnify releasees on any claims asserted due to injuries sustained by John D. Davis or releasors as a result of the accident. The balance of section E then discusses medical liens and subrogation claims.

{¶ 67} While the word "indemnify" appears in section E, nothing in the agreement suggests that plaintiff and Katie Davis would be forced to indemnify for wrongful death claims for which they made no collection. They are barred from maintaining their own wrongful death claims due to the broad language of *Page 438 the settlement agreement. The language in the agreement simply does not indicate that the parties intended that these two plaintiffs return their $100,000 in the event of John Davis's death to cover any wrongful death claims of other family members where it appears that the policy provides $100,000 for the personal injury claim and $100,000 for the wrongful death claims. Metropolitan would be placed in a better position than that for which they bargained.

{¶ 68} In section E it is stated that:

{¶ 69} "Releasors expressly and specifically stipulate and agree that they will protect, indemnify and forever hold harmless Releasees and their heirs, personal representatives and assigns from and against any and all claims, demands, actions or lawsuits of any kind which may be asserted against Releasees on account of or because of injuries or damages allegedly sustained or which may be sustained by John D. Davis or Releasors as a result of the aforesaid accident * * *."

{¶ 70} The first $100,000 was paid for the injuries sustained by John Davis. The releasors, Nancy Davis and Katie Davis are barred from asserting a wrongful death claim for their own injuries. The indemnification language only requires releasors to indemnify for all claims asserted against releasees due to injuries to John Davis, Nancy Davis or Katie Davis. This would include wrongful death claims asserted by plaintiff or Katie Davis. Under a strict reading of the indemnification language, releasors are not required to indemnify as a result of wrongful death claims brought by other family members for their own injuries under the wrongful death statute.