*63RE SPECIALLY CONCURRING OPINION
The specially concurring opinion questions the propriety of the negligence count in this case. The summary judgment, in effect, determined that both the contract and the negligence claim were subject to the G.2 limitation for damages and there were none, wherefore the only basis for recovery would be for gross negligence pursuant to the G.5 limitation. In their negligence count, appellants contend that there is a breach of duty imposed by law on appellee by virtue of the obligations imposed on it as a public utility to provide service. There are certain classes of contracts which create a relation out of which certain duties arise as implied by law independently of the express term of the contract. If the negligent breach of contract is also a breach of such duty, the remedy is ex contractu and ex delicto. Cline v. Sawyer, Wyo., 600 P.2d 725 (1979); Mosby v. Manhattan Oil Co., 52 F.2d 364 (8th Cir. 1931), 77 A.L.R. 1099, cert. denied 284 U.S. 677, 52 S.Ct. 131, 76 L.Ed. 572 (1931); Sugai v. General Motors Corporation, 130 F.Supp. 101 (D.C.Idaho 1955). Such is the situation in this case. Of course, a double recovery is not allowed. Reynolds v. Tice, Wyo., 595 P.2d 1318 (1979).
Additionally, the contract terms themselves require a determination of negligence in order to ascertain liability. Section G.5 of appellee’s General Exchange Tariff, supra, became a part of the contract between the parties by express agreement and law. It created negligence as a measure of fault. Although it referred to such as “gross negligence,” the state’s policy as enunciated in the comparative negligence statute makes percentages of negligence as the proper consideration rather than general categories such as gross negligence. Danculovich v. Brown, supra. This point was conceded by appellee in one of its briefs filed with the trial court. The pleadings formulated a negligence issue. The trial was on a negligence issue.
Negligence is an inseparable part of the contract terms. It is recognized in the contract as a basis of liability. It must be adjudicated.
Reversed and remanded with direction to deny appellee’s motion for summary judgment and for further proceedings in accordance therewith.
THOMAS, Justice,specially concurring, with whom ROSE, Chief Justice, joins.
It is only because I reach the same result that this opinion can be denominated a special concurring opinion. My disagreement with the rationale propounded in the majority opinion is so sharp that in those respects I am dissenting from the views of the majority. Among the responsibilities of an appellate court is the obligation to lend some modicum of rationality to the law whenever possible. It is possible to do that in this instance, but the majority opinion does not do it. The assumption that an ex delicto remedy invokes the general law of negligence in tort is fallacious.
While the simile may not be apt, it makes about as much sense to call this action a negligence action instead of a contract action as it does to call the night the day. Obviously one cannot make the night into day simply by calling it the day. Furthermore, there are some rather obvious dangers in the assumption that one has made night into day by calling the night the day. This case is an action on a contract; it is solvable by the application of contract principles; and that is the way that it should be resolved.
The Supreme Court of Washington articulated the test for determining whether the claim sounds in tort or contract Yeager v. Dunnavan, 26 Wash.2d 559, 174 P.2d 755, 757 (1946), as follows:
“ 1 “ * * * When an act complained of is a breach of specific terms of the contract, without any reference to the legal duties imposed by law upon the relationship created thereby, the action is in contract, but where there is a contract for services which places the parties in such a relation to each other that, in attempting to perform the promised service, a duty im*64posed by law as a result of the contractual relationship between the parties is violated through an act which incidentally prevents the performance of the contract, then the gravamen of the action is a breach of the legal duty, and not of the contract itself, and in such case allegations of the latter are considered mere inducement, showing the relationship which furnishes the right of action for the tort, but not the basis of recovery for it, and in such cases the remedy is an action ex delicto.” ’ [Citation.]”
Similar statements of the test have been announced in other jurisdictions. E.g., Amphitheater Public Schools v. Eastman, 117 Ariz. 599, 574 P.2d 47 (1977); Malone v. University of Kansas Medical Center, 220 Kan. 371, 552 P.2d 885 (1976); Taylor v. Herbold, 94 Idaho 133, 483 P.2d 664 (1971); Quitmeyer v. Theroux, 144 Mont. 302, 395 P.2d 965 (1964).
In California, the rule has been stated as follows:
“ * * * [If] the cause of action arises from a breach of a promise set forth in the contract, the action is ex contractu, but if it arises from a breach of duty growing out of the contract it is ex delic-to." Tameny v. Atlantic Richfield Company, 164 Cal.Rptr. 839, 27 Cal.3d 167, 610 P.2d 1330, 1334, 9 A.L.R. 4th 314 (1980).
In the instant case, the gravaman of the action is the failure to provide services and facilities according to the contract, and the action is one ex contracto not ex delicto.
The paramount fallacy in the majority opinion is the invocation of the comparative negligence statute to establish the public policy which then becomes the fulcrum for a lever that abrogates the provisions of the General Exchange Tariff. This is indeed a strange way for this court to appropriate the functions of the executive branch of government acting through the Public Service Commission and that rationale probably should be renounced for that reason alone. The essence of my objection, however, is found in the provisions of § 1-1-109, W.S.1977, which reads in pertinent part as follows:
“(a) Contributory negligence shall not bar a recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to-person or property, * * * ” (Emphasis added.)
There being no logical way that this action can be regarded as an action “to recover damages for negligence resulting in death or in injury to person or property,” the provisions of the comparative negligence statute have no relevance to the resolution of the problem that this case presents.
I agree that the action of the district court in granting a partial summary judgment must be reversed, but only because, under applicable principles of contract law, the case was not ripe for that disposition. We have heretofore articulated the fundamental propositions of the law of contracts tha]t pertain in this instance. We begin with the duty of this court in a case requiring the interpretation of a contract to give effect to the intention of the parties as expressed by the language that they employ. McCartney v. Malm, Wyo., 627 P.2d 1014 (1981); Quin Blair Enterprises, Inc. v. Julien Construction Company, Wyo., 597 P.2d 945 (1979). In attempting to discern the intention of the parties from the language of their contract, we must look at the instrument as a whole and afford meaning to all the language used, if that is possible, and a reasonable construction can thereby be achieved. Sunburst Exploration, Inc. v. Jensen, Wyo., 635 P.2d 822 (1981); Amoco Production Company v. Stauffer Chemical Company of Wyoming, Wyo., 612 P.2d 463 (1980); Shepard v. Top Hat Land & Cattle Co., Wyo., 560 P.2d 730 (1977). This court will attempt to give meaning and effect to each and every provision or term in the instrument, because it is presumed that each provision in the contract is incorporated for a purpose. Shepard v. Top Hat Land & Cattle Co., supra, at 732; Rossi v. Percifield, Wyo., 527 P.2d 819 (1974). Provisions in the contract which apparently are in conflict must be reconciled, if a reconciliation can be accomplished by any reasonable interpretation, before the court will adopt a *65construction that would nullify any provision of the contract. Shepard v. Top Hat Land & Cattle Co., supra, at 732; Covey v. Covey’s Little America, Wyo., 378 P.2d 506 (1963); Wyoming Irr. Co. v. Yarnell, 31 Wyo. 120, 223 P. 332 (1924).
The contract which is before the court here requires the telephone company to install certain telephone equipment and provide private branch-exchange service to the appellant no later than December 14, 1979. The contract provided for the private branch-exchange equipment to be furnished for the initial contract period of 60 months beginning the day following the installation of the equipment. Furthermore, the telephone company agreed to provide such service “subject to the obligations and regulations of the company’s general exchange tariff and the terms of this letter.” When, extraneous documents, such as the General Exchange Tariff, are referred to in the body of a written instrument, such documents become part and parcel of the entire agreement just as if fully set forth in the written instrument signed by the parties. Kilbourne-Park Corporation v. Buckingham, Wyo., 404 P.2d 244 (1965); 17 Am.Jur.2d Contracts § 263 (1964).
When the provisions of the General Exchange Tariff are read in the light of other provisions of this contract, an inconsistency is manifested. The telephone company agrees to install equipment and provide service for the appellant, but insists that it was the intention of the parties that no liability for failure to install equipment or provide service would attach in the absence of gross negligence or willful misconduct. At the same time, however, paragraph G.l of the General Exchange Tariff provided as follows:
“In view of the fact that the customer has exclusive control of his communications over the facilities furnished him by the Telephone Company, and of the other uses for which facilities may be furnished him by the Telephone Company, and because of unavoidability of errors incident to the services and to the use of such facilities of the Telephone Company, the services and facilities furnished by the Telephone Company are subject to the terms, conditions and limitations specified in Paragraphs 2. through 7. following.”
Paragraphs G.2 and G.5 upon which the appellee relies are to be construed and applied in the light of this language.
Paragraph G.l assumes that service has been commenced when it speaks of control and use by the customer, the unavoidability of errors incident to the services, and to the use of facilities furnished by the telephone company. In this instance the appellant had no opportunity to assume control or use, because the breach by the telephone company prevented that. No facilities were furnished. The district court in such circumstances might have concluded as a matter of law that the General Exchange Tariff provisions were not applicable to the facts presented by the record. If the applicability could not be decided as a matter of law, that became a question of fact to be submitted to the jury, in which event any summary judgment would be inappropriate.
If these provisions of the General Exchange Tariff are found to be applicable, the contract before the court is ambiguous. In McCartney v. Malm, supra, at p. 1019, we said that an ambiguous contract is “an agreement which is obscure in its meaning, because of indefiniteness of expression, or because a double meaning is present.” See also Bulis v. Wells, Wyo., 565 P.2d 487 (1977). Here, both obscurity and indefiniteness can be identified. Contractual ambiguity is a question of law which this court is free to determine without deference to the opinion of the trial court. Amoco Production Company v. Stauffer Chemical Company of Wyoming, supra, at 465. We have held that summary judgment is inappropriate in cases where the contract to be construed is ambiguous or unclear in its meaning. Sunburst Exploration Company, Inc. v. Jensen, supra, at p. 825; Goodwin v. Upper Crust of Wyoming, Inc., Wyo., 624 P.2d 1192 (1981); Meuse-Rhine-Ijssel Cattle Breeders of Canada Ltd. v. Y-Tex Corporation, Wyo., 590 P.2d 1306 (1979). The justification for that rule is that the ambiguity *66makes the intent of the parties a question of material fact for the court or jury to resolve.
I would reverse the judgment of the trial court and remand the case with the direction that it is to be tried as a contract action. The trial court first should consider whether the provisions of the General Exchange Tariff are applicable as a matter of law. If that question is not disposed of as a matter of law, the applicability of the provisions of the General Exchange Tariff must be resolved as a question of fact. The jury first should decide whether as a matter of the general intent of the parties the provisions of the General Exchange Tariff, which the appellee relies upon, were included as a part of the contract of the parties. If the jury were to decide that question affirmatively, it then should determine whether the parties intended those provisions to apply in an instance such as this in which no services or facilities actually were furnished. In any event, the trial court should be instructed to eschew the application of the comparative negligence statute.