dissenting:
I respectfully dissent. Unlike the majority, I do not find that the indemnity provision at issue in this case, “regardless of whether or not [the injury] is caused in part by a party indemnified hereunder,” expresses a clear and unequivocal intention that Baglino indemnify the School District against the District’s own active negligence.
I find the majority’s conclusion problematic in several respects. First, the majority reasons that the words “caused in part” are broad enough to encompass behavior that includes active negligence. The majority concludes, therefore, that the words “caused in part” clearly and unequivocally express the parties’ intention that Baglino indemnify the School District for the District’s own active negligence.
The clear and unequivocal standard, however, requires “that the language of the indemnity provision address itself to the subject of the negligence of the indemnitee and by its terms show a clear and unequivocal intention that the indemnitee was intended to be indemnified against its own negligence.” Warburton v. Phoenix Steel Corp., 321 A.2d 345, 347 (Del.Super.Ct.1974), aff'd, Noble J. Dick, Inc. v. Warburton, 334 A.2d 225 (Del.1975) (emphasis added). The words “caused in part,” which address causation, are not coextensive with negligence. That is, “[w]hile causation may encompass negligent acts or omissions, it also covers matters which do not fall within the concept of negligence.” Sweetman v. Strescon Indus., Inc., 389 A.2d 1319, 1321 (Del.Super.Ct.1978).
By interpreting the language “caused in part” as a clear and unequivocal expression of the parties’ intention to include active negligence thereunder, the majority has in effect read the term “negligence” into the indemnity provision. Yet, the term “negligence” is not specifically included in the provision as written. Like the court in Batson-Cook Co. v. Industrial Steel Erectors, 257 F.2d 410, 413 (5th Cir.1958), I believe that a clear and unequivocal expression of intention “cannot come from reading into the general words used the fullest meaning which lexicography would permit.” Therefore, because the indemnity provision fails to address specifically the School District’s potential negligence, it fails to express a clear and unequivocal intention that Baglino indemnify the School District for the District’s own active negligence.
Second, the majority concludes that the “broad language” of the indemnity provision indicates that the parties contemplated coverage for any type of negligent behavior by the School District. I find this conclusion dubious. Although the School District may have contemplated indemnity for its own active negligence, I am not convinced that Baglino contemplated any such result with respect to the particular provision at issue.
Further, and contrary to the majority’s conclusion, “the test is not whether the indemnification language [is] broad enough to cover negligence of the indemni*63tee, ... [t]he test is whether the contract language specifically focused attention on the fact that by the agreement the indemnitor was assuming liability for the indemnitee’s own negligence.” Sweet-man, 389 A.2d at 1321 (emphasis added). The indemnity provision at issue fails to pass this test because it does not specifically focus attention on the fact that by the agreement Baglino was assuming liability for the School District’s own active negligence. Id. Moreover, this court has recognized that there are “conceptual bounds [in] treating standardized, formal contracts as if they were traditional ‘agreements,’ reached by bargaining between the parties.” Darner Motor Sales, Inc. v. Universal Underwriters Ins. Co., 140 Ariz. 383, 389, 682 P.2d 388, 394 (1984). By assuming that Baglino understood the words “caused in part” to mean that it must indemnify the School District for the District’s own active negligence, the majority exceeds those bounds.
The majority also rejects a “mechanical application” of the accepted rule that under a general indemnity agreement (which is what we are dealing with here), “an indemnitee is entitled to indemnification for a loss resulting in part from an indemnitee’s passive negligence, but not active negligence,” Pioneer Roofing, because “in a given case [the application of the rule] may prevent an agreement from being enforced as the parties intended.” This is not that “given case.” The School District does not claim, and the majority fails to cite any evidence indicating, that the intention of the parties is different from that contained in the ambiguous, boilerplate provision we are analyzing.
Finally, the majority’s conclusion simply encourages repetitive litigation initiated solely to determine whether an indemnity provision is sufficiently clear and unequivocal to require an indemnitor to bear the burden of an indemnitee’s active negligence. Such litigation is neither a recent development nor an infrequent occurrence. See Annotation, Liability of Subcontractor Upon Bond or Other Agreement Indemnifying General Contractor Against Liability for Damage to Person or Property, 68 A.L.R.3d 7 (1976); Annotation, Building Contractor’s Liability, Upon Bond or Other Agreement to Indemnify Owner, for Injury or Death of Third Persons Resulting from Owner’s Negligence, 27 A.L.R.3d 663 (1969). Given the extent of this problem, “it is not too much to require [parties] to stop waging verbal duels and to state unmistakably whether or not a contract purports to burden the indemnitor with another’s negligence.” Jordan v. City of New York, 3 A.D.2d 507, 514, 162 N.Y.S.2d 145, 152 (1957) (Botein, J., dissenting), majority aff'd, 5 N.Y.2d 723, 152 N.E.2d 667, 177 N.Y.S.2d 709 (1958). Therefore, I advocate a bright-line rule that requires an indemnity provision to refer, by an express stipulation, to an indemnitee’s own active negligence as a prerequisite for such indemnification. The indemnification provision should permit no cavil.
That which the majority and the trial court find to be clear and unequivocal is not clear and unequivocal to the judges of the court of appeals or to me. It may be time for the American Institute of Architects to revise the provision in question.
I agree with the conclusion of the court of appeals and would reverse the judgment entered in the trial court.