St. Paul Fire & Marine Insurance Co. v. Gilpatrick Construction Co.

THOMAS, Justice,

specially concurring.

In disposing of this case we need to account for other prior decisions by this court which address this problem. In Mountain Fuel Supply Co. v. Emerson, Wyo., 578 P.2d 1351 (1978), we construed language in an agreement which appears to have been somewhat more specific than this agreement as manifesting an intention to indemnify Mountain Fuel Supply Co. from the consequences of its own negligence. In that case, however, we held the indemnification agreement unenforceable because of the provisions of § 30-28.3, et seq., W.S.1957, C.1967, Cum.Supp.1975, which now is codified as § 30-1-131, et seq., W.S.1977.

Next the court addressed this question in Pan American Petroleum Corporation v. Maddux Well Service, Wyo., 586 P.2d 1220 (1978). In that case we recognized a right of indemnity under circumstances such as those presented by this case, and we sent the case back for trial on the implied indemnity claim asserted by Pan American. With respect to a contractual indemnity claim we held that the language in the contract was not sufficient to create the right of indemnity, but we were critical of *1192an argument that we concluded tended to confuse the law of torts with the law of indemnification. We pointed out in that case that the liability of Maddux to Pan American Petroleum Corporation was to be determined by reference to the independent obligations which Maddux owed to Pan American.

The court next decided Wyoming Johnson, Inc. v. Stag Industries, Inc., Wyo., 662 P.2d 96 (1983), in which we again recognized a right of indemnity in factual circumstances such as these, but we held that the contractual language was not sufficient to justify the claim. In Cities Service Co. v. Northern Production Co., Wyo., 705 P.2d 321 (1985), we cited Wyoming Johnson, Inc. v. Stag Industries, Inc., supra, for the proposition that, “where the agreement, in clear and unambiguous language and beyond peradventure when strictly construed, provides indemnification against one’s own negligence, it will be upheld.” Cities Service Co. v. Northern Production Co., supra, at 326. In this latter case we held that a strict construction of the contractual language would pertain with respect to an assertion that Northern Production Co. had agreed to provide indemnity to Cities Service Co. against Cities Service Co.’s own negligence. With respect, however, to the contention that the agreement was sufficient to indemnify Cities Service Co. for the negligence of Northern Production Co. we applied a rule of liberal construction. We then held that the agreement was not one to indemnify Cities Service Co. for its own negligence; the agreement was not void but valid; and it was not unenforceable because of the provisions of § 30-1-131, W.S.1977.

Then in Reliance Insurance Co. v. Chevron U.S.A., Inc., Wyo., 713 P.2d 766 (1986) we again construed the provisions of § 30-1-131, et seq., W.S.1977, with respect to a question of law certified to this court by the United States District Court. In the process, however, we recognized the contractual efficacy of an indemnity clause indemnifying “ ‘against all loss, damage, liability, claims and liens of every kind arising out of or attributable, directly or indirectly, to the operations of Contractor hereunder, including without limitation, all claims for injury to or death of persons, loss of or damage to property * * *.’ ” Reliance Insurance Co. v. Chevron U.S.A., Inc., supra, 713 P.2d at 768.

It thus appears that this court has adopted a rule of strict construction with respect to contractual agreements to indemnify a party such as C.J. Abbott, Inc. against the consequences of its own negligence. If the claimed agreement, however, is one indemnifying a party such as C.J. Abbott, Inc. against the consequences of the negligence or other conduct on the part of the indemnitor, Gilpatrick Construction Co., Inc., in this instance, then a rule of liberal construction in support of the right of the parties to contract will be applied. I am satisfied that the result in this case is consistent with our earlier cases including Wyoming Johnson, Inc. v. Stag Industries, Inc., supra.

In Wyoming Johnson, Inc. v. Stag Industries, Inc., supra, we concluded that the adoption of a provision in a sub-contract of the duty of the general contractor to indemnify the owner did not amount to a clear and unequivocal agreement to indemnify the general contractor from the consequences of its own negligence. Proceeding to address a claim for indemnity premised upon a theory of breach of contract, we construed the contract as containing language which limited the duty to indemnify to the acts or omissions of the sub-contractor. The claims in the injured workman’s complaint were for the negligence of the general contractor, and there was no additional information in the record relating to actual cause. Consequently we denied the right to indemnity in that case.

The difference in this case is that the parties have stipulated that the injuries to Tom Johnson were proximately caused by the absence of a guard on the feedbelt of Gilpatrick’s rock crushing machine. Gilpa-trick had agreed to comply with governmental regulations which required such a *1193guard, and also had agreed to indemnify C.J. Abbott, Inc. for consequences resulting from Gilpatrick’s failure to carry out any provision of the subcontract. The record goes beyond the allegations in the injured workman’s complaint. This case then stands for the proposition that if the injury clearly results from a failure of the sub-contractor to perform a contractual duty an agreement by the sub-contractor to indemnify the contractor for the failure of the sub-contractor to properly perform its obligations under the sub-contract is sufficient to demonstrate a right of express contractual indemnity. This result and this holding is consistent with the previous cases in which we have addressed this problem, and presents a just result.