dissenting:
I would construe the “sole negligence” provision of the indemnity agreement to mean that Eastern is not entitled to indemnification when its liability for damages is solely attributable to its own negligence. Since the indemnification undertaking deals with liability, the language of the “sole negligence” exception cannot reasonably be divorced from liability-causing conduct. The exception to the indemnity undertaking for the indemnitee’s sole negligence should be construed to mean that the indemnitor is liable in every instance in which some party other than the indemnitee has engaged in conduct resulting in the indemnitee’s liability to a claimant. Contributory negligence is not conduct resulting in liability to the claimant because the claimant’s award is reduced in proportion to his or her own negligence. The only party which engaged in conduct resulting in liability to a claimant is Eastern Airlines. Thus the sole negligence exception to the indemnity undertaking should apply. Construing the contract language as the majority does wrenches it from its context.
Compensated risk takers generally should be required to fulfill their indemnification obligations, and thus should have the insurance policies which they draft construed in favor of the insured. Those salutary rules are not involved here. Eastern Airlines contracted at arm’s length with ABC Services. Insurance Company of North America undertook to indemnify Eastern only to the extent that Eastern and ABC contracted for indemnification. As a stranger to the Eastern Airlines— ABC contract, it is entitled to have the language construed against Eastern, which drafted it. Such a rule of construction would, it appears to me, require that the sole negligence language be restricted to liability-causing conduct. That being so, I would reverse and remand for the entry of judgment in favor of Insurance Company of North America.