Lloyd v. Sugarloaf Mountain Corp.

CALKINS, J.,

with whom ALEXANDER and LEVY, JJ., join, dissenting.

[¶ 15] Although I agree with the Court that the membership release, which is unambiguous and specifically refers to negligence, absolves Sugarloaf and NORBA of their own negligence, I write separately because I believe that we should vacate the summary judgment granted to Sugar-loaf and NORBA on their counterclaims for indemnification. In my opinion, the indemnification clause, which is contained *6in the entry release form, cannot support the judgment for attorney fees against Lloyd because it is unclear and ambiguous.

[¶ 16] In my analysis, I start with the principle that contracts indemnifying a party from the party’s own negligence are strictly construed against the indemnitee. In Emery Waterhouse Co. v. Lea, 467 A.2d 986 (Me.1983), we said that such contractual provisions are looked upon with disfavor and are construed strictly. Id. at 993.

It is only where the contract on its face by its very terms clearly and unequivocally reflects a mutual intention on the part of the parties to provide indemnity for loss caused by negligence of the party to be indemnified that liability for such damages will be fastened on the indemnitor, and words of general import will not be read as expressing such an intent and establishing by inference such liability.

Id. In that case, the tenant had indemnified the landlord “against any and all claims” from damages “arising from or out of any occurrence in, upon or at the leased premises.” Id. However, because another portion of the indemnification clause “inferentially suggested]” that attorney fees would be incurred only if the landlord was without fault, we found that the clause was inadequate. Id. In McGraw v. S.D. Warren Co., 656 A.2d 1222 (Me.1995), we held that the contract indemnifying the defendant by a third party for “any claims” caused by anyone employed by the third party or the defendant was not sufficiently specific to indemnify the defendant for its own negligence. Id. at 1224.

[¶ 17] Secondly, just as with other contracts, we interpret a particular provision in light of the entirety of the agreement between the parties. See Crowe v. Bolduc, 334 F.3d 124, 137 (1st Cir.2003) (applying Maine law and finding ambiguity in two agreements read in conjunction). Here, that means that the indemnification clause must be construed in the context of the contract in which it appears. That contract is the entry release.

[¶ 18] Thus, I look at the indemnification clause through the lens of strict construction, knowing that we disfavor such clauses, and in the context of the entire contract, and I proceed to decide whether the indemnification clause is clear and unambiguous. In doing so, I consider whether there are different interpretations that can be given reasonably to the contract. “[A] contractual provision is considered ambiguous if it is reasonably possible to give that provision at least two different meanings.” Villas by the Sea Owners Ass’n v. Garrity, 2000 ME 48, ¶ 9, 748 A.2d 457, 461.

[¶ 19] The indemnification clause states: “I ... shall be liable for the expenses (including legal fees) incurred by the other party or parties in defending, unless the other party or parties are financially adjudged liable on such claim for -willful and wanton negligence.” Several lines above the indemnification clause and in close proximity to it, there is other language in the entry release that discharges NORBA and Sugarloaf from “any and all damages” for “any and all claims.” Lloyd suggests that the indemnification clause is ambiguous and equivocal because it contains an exception for willful and wanton negligence, whereas the other provision in the entry release exculpates NORBA and Su-garloaf from “any and all claims.”

[¶ 20] There are several possible constructions of the indemnification clause. First, there is the interpretation urged by Sugarloaf that the exception for willful and wanton negligence is inapplicable because Maine does not recognize the tort of willful and wanton negligence. Thus, Sugarloaf and NORBA cannot be found liable by a Maine court for willful and wanton negli*7gence, and, therefore, the indemnification clause is consistent with the remainder of the release. NORBA proposes a slightly different interpretation: it could never be found liable for willful and wanton negligence because the entry release excuses it from “any and all claims,” which must include willful and wanton negligence. Although both of these interpretations have the effect of negating the willful and wanton exception in the clause, they are reasonable interpretations.

[¶ 21] A third reasonable interpretation is that although the entry release speaks to “any and all claims,” it only applies to claims for ordinary negligence. This construction recognizes the principle enunciated in a number of cases and commentaries that exculpatory releases, which immunize a party from its own gross negligence or willful and wanton negligence, are void as against public policy. Farina v. Mt. Bachelor, Inc., 66 F.3d 233, 235 (9th Cir.1995); Schutkowski v. Carey, 725 P.2d 1057, 1059 (Wyo.1986); Mary Ann Connell & Frederick G. Savage, Releases: Is There Still a Place for Their Use by Colleges and Universities?, 29 J.C. & U.L. 579, 603 (2003) (“Courts generally agree that one may not exonerate [oneself] from liability for willful or wanton misconduct, for gross negligence, or for intentional torts, even if there is broad exculpatory language.”); WALTER T. CHAMPION, JR., FUNDAMENTALS OF SPORTS LAW § 11:2 at 209 (1990) (“[I]t is universally held that a release will not bar a claim for gross negligence.”). This interpretation anticipates that Maine courts would hold that Sugar-loaf and NORBA are not exempt from willful and wanton negligence even though the release may excuse them from all other claims.

[¶ 22] Where the terms of an indemnification clause are not clear and unequivocal, the clause will not suffice to indemnify. Emery Waterhouse Co., 467 A.2d at 993. The indemnification clause here is equivocal, unclear, and ambiguous because it is susceptible to reasonable and differing interpretations. The membership release stands in sharp contrast to the entry release. The former clearly and unambiguously releases NORBA and Sugarloaf for “any and all liability” arising from “any negligence, action or omission to act.” The indemnification clause in the entry release provides for the payment of attorney fees “unless the other party or parties are financially adjudged liable on such claim for willful and wanton negligence,” but that same document discharges the indemnitees from “any and all claims.” The entry release does not unequivocally state that the bringing of a negligence claim against the indemnitee will result in the imposition of costs and attorney fees against the claimant. For this reason, it cannot be the basis for the imposition of an award for attorney fees.2 Thus, I would vacate the summary judgment on the counterclaim and the award of attorney fees assessed against Lloyd.

. At least one jurisdiction has held that an indemnity clause with an attorney fee provision in a recreational activity release is void as against public policy. Dare v. Freefall Adventures, Inc., 349 N.J.Super. 205, 793 A.2d 125, 136 (Ct.App.Div.2002).