United States Court of Appeals
For the First Circuit
No. 09-2524
FARMERS INSURANCE EXCHANGE,
Plaintiff, Appellee,
v.
RNK, INC., D/B/A RNK TELECOM,
Defendant, Appellant,
RIPPLE COMMUNICATIONS, INC.
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Leo T. Sorokin, U.S. Magistrate Judge]
Before
Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.
Andre Sansoucy, with whom Richard J. Shea, Kathryn M. Auger,
and Melick, Porter & Shea, LLP, were on brief for appellant.
Roger D. Matthews, with whom Denner Pellegrino, LLP, was on
joint brief for defendant-appellee Ripple Communications, Inc.
Steven J. Bolotin, with whom Christa Arcos and Morrison
Mahoney, LLP, were on joint brief for plaintiff-appellee Farmers
Insurance Exchange.
January 21, 2011
TORRUELLA, Circuit Judge. In this appeal, based on
diversity jurisdiction, appellant-defendant RNK, Inc., d/b/a RNK
Telecom ("RNK") challenges the district court's decision to grant
summary judgment on its indemnification claim in favor of appellee-
plaintiff Farmers Insurance Exchange ("Farmers") and appellee-
defendant Ripple Communications, Inc. ("Ripple") (collectively,
"Appellees"). Specifically, RNK avers that Ripple has a duty to
indemnify RNK against claims asserted by Jane Doe in a civil action
brought by her in the United States District Court for the Southern
District of New York (the "Doe Lawsuit").
Ripple and Farmers (Ripple's insurer) jointly moved for
summary judgment requesting that the district court summarily
dismiss RNK's indemnification claim and enter a declaration stating
that they have no duty or obligation to indemnify or otherwise hold
harmless RNK against any claim, cost or expense incurred by RNK in
its defense of the Doe Lawsuit. The district court granted summary
judgment in Appellees' favor and RNK now appeals. After careful
consideration, we affirm the district court's judgment.
I. Facts and Procedural History
Because this appeal is from a grant of summary judgment,
we view the record in the light most favorable to the party against
whom summary judgment entered (here, RNK), "indulging all
reasonable inferences in that party's favor." Fiacco v. Sigma
Alpha Epsilon Fraternity, 528 F.3d 94, 98 (1st Cir. 2008); Den
-2-
Norske Bank AS v. First Nat'l Bank of Boston, 75 F.3d 49, 53 (1st
Cir. 1996).
RNK, a Massachusetts corporation, is a telephone company
that provides services to the public as a Competitive Local
Exchange Carrier ("CLEC"). Ripple is a Nevada corporation that
provides conferencing services. One of Ripple's services allows
people to meet and confer through live telephone chat lines.
Farmers is a California company that issued a general liability
insurance policy to Ripple.
In 1999, Ripple and RNK entered into a written agreement
(the "Agreement") whereby RNK agreed that Ripple would locate and
install at RNK's premises certain electronic equipment necessary
for Ripple to provide conferencing services to its customers. In
order for Ripple's chat lines to function, a call had to travel
over RNK's network and through Ripple's proprietary hardware and
software (to which RNK's lines were attached). RNK was obligated
under the Agreement to assign telephone numbers to Ripple's
conferencing lines and to notify Ripple's customers any time that
RNK for some reason decided to block calls.
Paragraphs one, three and ten of the Agreement state as
follows:
1. Customer Equipment[.] RNK shall arrange
for the assignment of the telephone numbers
and arrange [for Ripple] to co-locate at
[Ripple]'s expense certain electronic
Equipment, acceptable to RNK in accordance
with the terms of this Agreement. [Ripple]
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shall use the Equipment installed at RNK's
premises to provide information to its
customers. At the termination of the
Agreement, [Ripple] will, at its sole cost and
expense, remove the Equipment from RNK's
premises. It is understood and agreed that
[Ripple] co-locates any and all of its
Equipment at RNK's offices at its sole risk,
and that RNK assumes no liability whatsoever
for such Equipment's operation, maintenance,
security or condition.
. . . .
3. Indemnification and Insurance[.] Customer
[Ripple] hereby agrees to indemnify RNK and
hold harmless from and against all damage
claims associated with any equipment of
customers [Ripple]. Customer [Ripple] further
agrees that [it] shall maintain a blanket
$1,000,000 general liability insurance policy
reasonably satisfactory to RNK. RNK shall not
have any liability for any loss or damage
related to the Customers' [Ripple's]
equipment. Customers' [RNK's] casualty and
fire insurance policies apply only to RNK's
facilities. Customer [Ripple] will be
responsible for insuring own equipment.1
. . . .
10. Customer Conduct[.] Customer [Ripple]
shall abide by all State and Federal
regulations applicable to its operation. If
they do not, RNK may terminate this agreement
if the violation continues for over seven days
after notice to the Customer [Ripple].
Customer [Ripple] shall be responsible for all
marketing and content and will hold RNK
harmless from all claims arising from such.
(Emphasis added). Paragraphs three and ten of the Agreement
(quoted above) were based on a standard sample agreement provided
by Ripple.
1
As noted by the district court, the Agreement reflects an
imprecise use of the term "Customer." We agree with the district
court that the reference to casualty and fire insurance policies
here quoted refers, in context, to RNK's policies.
-4-
On October 16, 1998, the New York Public Service
Commission ("NYPSC"), which has jurisdiction under New York law to
regulate CLECs such as RNK, issued an order (the "Regulatory
Order") providing that all CLECs that had chat lines on their
networks had to immediately either designate existing chat line
central office codes as blockable or transfer these chat lines to
specific central office codes that were already designated as
blockable codes.2 A major consideration in adopting this order was
the desire to protect minors by providing end-users the ability to
block the completion of telephonic communications.
In 2005, Jane Doe, a minor acting through her adoptive
father, brought the Doe Lawsuit in the United States District Court
for the Southern District of New York against RNK alleging that RNK
violated the Regulatory Order by not assigning blockable telephone
numbers to chat lines and that, as a result, she was improperly
able to gain access to a chat line through which she met several
individuals who -- after convincing her to contact them in person
-- sexually assaulted her.3 Jane Doe claimed in the Doe Lawsuit
that RNK's violation of the Regulatory Order was the proximate
2
Appellees explain that a "central office code" is the prefix or
exchange (digits four, five and six of a ten-digit number including
area code) of a telephone number. For example, the "123" in
1-900-123-4567 is the central office code. A blockable central
office code provides end-users the ability to prevent the
completion of a call made to a number containing that code.
3
The alleged facts giving rise to Jane Doe's claims took place in
or around September 2004.
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cause of the injuries she sustained. As a result of the incident
involving Jane Doe, the NYPSC issued an order on October 20, 2004
stating that it appeared that RNK had violated the Regulatory Order
and directing RNK to show cause as to why the NYPSC should not
proceed against RNK with a penalty action. In response to the
NYPSC's order to show cause and during the course of the Doe
Lawsuit, RNK admitted that it failed to comply with the Regulatory
Order. RNK's insurer settled the Doe Lawsuit and then, in the name
of RNK, sought indemnity from Ripple and Farmers (Ripple's insurer)
for its costs of defense and settlement of the Doe Lawsuit. RNK's
claim for indemnification was and continues to be based on its
contention that the indemnity provisions of the Agreement require
indemnification from the claims asserted by Jane Doe in the Doe
Lawsuit.
Farmers filed the underlying declaratory judgment action
against both Ripple and RNK seeking a ruling that it has no duty to
defend or indemnify RNK in connection with the Doe Lawsuit. The
parties then filed the following claims: (1) RNK filed a cross-
claim against Ripple seeking a determination that Ripple owes a
duty to indemnify RNK against Doe's claims, (2) Ripple filed a
counterclaim against Farmers seeking a declaratory judgment that
Farmers has an obligation to defend or indemnify it against RNK,
and (3) Ripple filed a cross-claim against RNK seeking a
declaratory judgment that Ripple has no contractual, common law or
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other obligation of indemnity, contribution or other duty toward
RNK.
On April 30, 2009, all parties moved for summary judgment
on the issue of whether Ripple has a duty to indemnify RNK against
the claims asserted by Jane Doe in the Doe Lawsuit. After
concluding that Ripple is not contractually obligated under the
Agreement to indemnify RNK against such claims, the district court
issued an order on September 29, 2009 denying RNK's motion for
summary judgment and granting Appellees' joint motion for summary
judgment. On October 13, 2009, the district court entered a
judgment dismissing all other claims as moot. RNK now appeals this
judgment and the order that granted Appellees' joint motion for
summary judgment.
II. Standard of Review
Summary judgment is appropriate when the record shows
that "there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a).4 "A dispute is genuine if the evidence about the fact is
4
On December 1, 2010, during the pendency of the present appeal,
an amended version of Rule 56 of the Federal Rules of Civil
Procedure became effective. Pursuant to 28 U.S.C. § 2074(a), the
Supreme Court stated that the amended rule "shall govern in all
proceedings thereafter commenced and, insofar as just and
practicable, all proceedings then pending." U.S. Supreme Court,
Order Amending Federal Rules of Civil Procedure (Apr. 28, 2010),
http://www.uscourts.gov/RulesAndPolicies/FederalRulemaking/Pendin
gRules/ProposedSupCt1210.aspx (follow "Supreme Court Orders and
Transmittal Letters" hyperlink). "Often an appellate court will
apply the law in effect at the time of the appeal, at least where
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such that a reasonable jury could resolve the point in the favor of
the non-moving party. A fact is material if it has the potential
of determining the outcome of the litigation." Rodríguez-Rivera v.
Federico Trilla Reg'l Hosp., 532 F.3d 28, 30 (1st Cir. 2008)
(internal quotation marks and citations omitted).
We review de novo the grant of a motion for summary
judgment. GTE Wireless, Inc. v. Cellexis Int'l, Inc., 341 F.3d 1,
4 (1st Cir. 2003). We will reverse only if, after reviewing the
facts and making all inferences in favor of the party against whom
summary judgment entered (here, RNK), "the evidence on record is
sufficiently open-ended to permit a rational factfinder to resolve
Congress so intends. But the court will not do so if that
application would work a 'manifest injustice.'" Freund v.
Fleetwood Enterprises, Inc., 956 F.2d 354, 363 (1st Cir. 1992)
(internal quotation marks and citations omitted). Therefore, we
may apply amended Rule 56 to this case if it is "just and
practicable" to do so and does not otherwise work a "manifest
injustice." See Silva v. Witschen, 19 F.3d 725, 727-729 (1st Cir.
1994); Afanador v. United States Postal Service, 976 F.2d 724,
1992 WL 225920, 1992 U.S. App. LEXIS 30071 (1st Cir. 1992)
(unpublished table decision). The amendments to Rule 56 "are
intended to improve the procedures for presenting and deciding
summary-judgment motions" and "are not intended to change the
summary-judgment standard or burdens." Committee on Rules of
Practice and Procedure, Report of the Judicial Conference, page 14
(Sept. 2009) ( e m phasis added), available at
http://www.uscourts.gov/RulesAndPolicies/FederalRulemaking/Resear
chingRules/Reports.aspx (follow "Committee on Rules of Practice and
Procedure (Report to Judicial Conference)" hyperlink; then follow
"September 2009" hyperlink). Applying the amended version of Rule
56 in this case is just and practicable and would not work a
manifest injustice, because the amendments do not change the
summary judgment standard or burdens. Accordingly, we decide the
present appeal with reference to the summary judgment standard set
forth in the amended version of Rule 56.
-8-
the issue in favor of either side." Maymí v. P.R. Ports Auth., 515
F.3d 20, 25 (1st Cir. 2008) (internal quotation marks and citations
omitted).
III. Discussion
RNK contends, first, that the district court erred in
finding that Ripple is not obligated to indemnify RNK against the
claims asserted by Jane Doe in the Doe Lawsuit. Specifically, RNK
alleges that the district court erred when it failed to conclude
that paragraphs three and ten of the Agreement (hereinafter
collectively referred to as the "Indemnity Provisions") require
Ripple to indemnify RNK against Doe's claims. Second, RNK
alternatively alleges that the Indemnity Provisions are ambiguous
and should be interpreted against Ripple, the party who provided
the sample agreement that served as basis for the language included
in said provisions. Third, RNK alternatively claims that, at the
very least, conflicting interpretations about the Indemnity
Provisions create a question of fact that precludes summary
judgment.
In opposition to RNK's allegations, Appellees contend
that the district court was correct in finding that the Indemnity
Provisions are not ambiguous and do not support RNK's
indemnification claim. Appellees further contend that assuming
arguendo that the Agreement contained an ambiguity regarding the
Indemnity Provisions, the same cannot be interpreted against Ripple
-9-
in the present case given that, first, the parties are of equal
sophistication and bargaining power and, second, Ripple cannot be
considered the drafter of the Indemnity Provisions. Finally,
Appellees allege that even if the Agreement could be deemed to
require Ripple to indemnify RNK for Jane Doe's claims -- which
Appellees deny -- enforcement of such a provision would be against
public policy, because it would promote a breach of duty to the
public by indemnifying RNK from the consequences of its own
negligence (i.e., failing to assign blockable numbers to chat
lines, as required by the Regulatory Order).
For the reasons stated below, we find that the contract
terms at issue here are unambiguous. We conclude that the plain
language of the contract, interpreted to ascertain the manifest
intent of the parties and to effectuate their purposes, does not
require Ripple to indemnify RNK against Jane Doe's claims in the
Doe Lawsuit. Accordingly, we affirm the district court's grant of
summary judgment and find it unnecessary to address the parties'
arguments regarding the application of ambiguous contractual
provisions or Appellees' public policy objection.
A. Applicable State Law
The present appeal requires that we interpret the scope
of the Agreement (particularly, the Indemnity Provisions). It is
undisputed that interpretation of the Agreement is governed by
Massachusetts law. "[U]nder Massachusetts law, interpretation of
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a contract is ordinarily a question of law for the court, and, as
a question of law, is subject to plenary review." Bank v. Int'l
Bus. Machs. Corp., 145 F.3d 420, 424 (1st Cir. 1998) (internal
quotation marks and citation omitted). A court interpreting a
contract must first assess whether the contract is ambiguous. See
Bank v. Thermo Elemental Inc., 888 N.E.2d 897, 907 (Mass. 2008).
"To answer the ambiguity question, the court must first examine the
language of the contract by itself, independent of extrinsic
evidence concerning the drafting history or the intention of the
parties." Id. "Ambiguity is not created merely because the
litigants disagree about the meaning of a contract." Nicolaci v.
Anapol, 387 F.3d 21, 26 (1st Cir. 2004). Rather, "a contract is
only ambiguous where an agreement's terms are inconsistent on their
face or where the phraseology can support reasonable differences of
opinion as to the meaning of the words employed and obligations
undertaken." Bank v. Int'l Bus. Machs. Corp., 145 F.3d at 424
(internal quotations marks and citation omitted).
The meaning of an unambiguous contract term is a question
of law, while the meaning of an ambiguous contract term is a
question of fact. Seaco Ins. Co. v. Barbosa, 761 N.E.2d 946, 951
(Mass. 2002); see also Fairfield 274-278 Clarendon Trust v. Dwek,
970 F.2d 990, 993 (1st Cir. 1992). "Should the court find the
contract language unambiguous, we interpret it according to its
plain terms." Den Norske Bank AS, 75 F.3d at 52. Summary judgment
-11-
is appropriate when those plain terms unambiguously favor either
side. Bank v. Int'l Bus. Machs. Corp., 145 F.3d at 424. "On the
other hand, if the contract's terms are ambiguous, contract meaning
normally becomes a matter for the factfinder, and summary judgment
is appropriate only if the extrinsic evidence presented about the
parties' intended meaning is so one-sided that no reasonable person
could decide to the contrary." Id. (internal quotation marks and
citations omitted). In the absence of fraud or mistake, "an
agreement is presumed to express the intent of the parties."
Fairfield 274-278 Clarendon Trust, 970 F.2d at 993 (citing Hess Oil
& Chem. Corp. v. Ristuccia, 331 N.E.2d 823, 823 (Mass. App. Ct.
1975)).
Here, the district court interpreted and applied the
Agreement, determining that there were no ambiguities for the jury
to resolve as to whether the parties thereto intended for Ripple to
indemnify RNK against Doe's claims. The district court went on to
conclude that Ripple is not obligated under the Agreement to
indemnify RNK from Doe's claims. These are "legal" determinations
and our review thereof is, thus, plenary. See Bank v. Int'l Bus.
Machs. Corp., 145 F.3d at 424; ITT Corp. v. LTX Corp., 926 F.2d
1258, 1261 (1st Cir. 1991) ("The determination of whether a
contract provision is ambiguous is a question of law subject to
plenary review."). With these principles in mind, we now discuss
RNK's indemnification claim on appeal.
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B. Interpretation of the Indemnity Provisions
RNK claims that Ripple is obligated, pursuant to the
Agreement, to indemnify it from the claims asserted by Jane Doe in
the Doe Lawsuit. RNK provides two possible bases for this
assertion, namely: paragraph three and/or paragraph ten of the
Agreement. We analyze these allegations separately. In doing so,
we are mindful that under Massachusetts law, "[c]ontracts of
indemnity are to be 'fairly and reasonably construed in order to
ascertain the intention of the parties and to effectuate the
purpose sought to be accomplished.'" Nicolaci, 387 F.3d at 24
(quoting Shea v. Bay State Gas Co., 418 N.E.2d 597, 600 (Mass.
1981)); see also Whittle v. Pagani Bros. Constr. Co., 422 N.E.2d
779, 781 (Mass. 1981) (noting that some older Massachusetts cases
"lay down a rule of strict construction for claims of indemnity
covering the negligence of the indemnitee," but that the modern
rule under Massachusetts law "is that such contracts are to be
fairly and reasonably construed to ascertain the intention of the
parties and to effectuate their purpose"). It is "well accepted
under Massachusetts law that indemnification provisions are
construed in accordance with their ordinary and plain meaning and
without any bias in favor of the indemnitor or against the
indemnitee." Caldwell Tanks, Inc. v. Haley & Ward, Inc., 471 F.3d
210, 217 (1st Cir. 2006).
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1. Paragraph Three of the Agreement
Under paragraph three of the Agreement, Ripple agreed to
"indemnify RNK and hold harmless from and against all damage claims
associated with any equipment of [Ripple]." (Emphasis added.)
Given that only claims "associated" with any of Ripple's
"equipment" are subject to the indemnification obligations set
forth in this paragraph, it is key to interpret the meaning of
these terms (i.e., "associated" and "equipment") within the context
of the Agreement.
"In interpreting contractual language, we consider the
contract as a whole. Its meaning 'cannot be delineated by
isolating words and interpreting them as though they stood alone.'"
Nicolaci, 387 F.3d at 26 (quoting Starr v. Fordham, 648 N.E.2d
1261, 1269 (Mass. 1995)). "Not only must due weight be accorded to
the immediate context, but no part of the contract is to be
disregarded." Starr, 648 N.E.2d at 1269.
Although the Agreement does not expressly define the term
"equipment," the same is used in other parts of the Agreement.
Specifically, paragraph one, which is titled "Customer Equipment,"
states that "RNK shall arrange [for Ripple] to co-locate at
[Ripple]'s expense certain electronic Equipment" and that "[Ripple]
shall use the Equipment installed at RNK's premises to provide
information to its customers." (Emphasis added.) Said paragraph
further states that "Ripple co-locates any and all of its Equipment
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at RNK's offices at its sole risk" and, upon termination of the
Agreement, shall "remove the Equipment from RNK's premises" at its
sole cost. (Emphasis added.) In addition, paragraph three of the
Agreement establishes that "RNK shall not have any liability for
any loss or damage related to [Ripple]'s equipment," "[RNK]'s
casualty and fire insurance policies apply only to RNK's
facilities," and "[Ripple] shall be responsible for insuring own
equipment." (Emphasis added.)
The aforementioned textual language of the Agreement
makes unambiguously clear and the parties do not dispute that the
term "equipment" is used therein in its ordinary sense to refer to
Ripple's tangible equipment to be located at RNK's premises.5
With regards to the term "associated," the Agreement does
not define the same and only uses it in paragraph three.
Nevertheless, said term is ordinarily and commonly used to indicate
that something is "closely connected, joined, or united with
another (as in interest, function, activity, or office)."
Webster's Third New International Dictionary Unabridged 132 (1971).
Therefore, under paragraph three of the Agreement, Ripple undertook
the obligation to indemnify RNK against all claims associated
(i.e., closely connected, joined or united) with Ripple's tangible
equipment located at RNK's premises. With this understanding in
5
Black's Law Dictionary defines "equipment" as "[t]he articles or
implements used for a specific purpose or activity (esp. a business
operation)." Black's Law Dictionary 617 (9th ed. 2009).
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mind, below we discuss whether the indemnification obligation set
forth in paragraph three applies to Doe's claims.
Jane Doe's claim in the Doe Lawsuit was that RNK's
tortious failure (in violation of the Regulatory Order) to assign
blockable codes to the chat lines that she used to contact her
assailants was the proximate cause of her damages. RNK contends
that this claim is covered under paragraph three's indemnification
obligation. To this effect, RNK argues that Doe's claim is
"associated" with Ripple's "equipment," within the meaning of
paragraph three, because the chat line Jane Doe used to meet her
assailants would never have operated without Ripple's equipment,
and without the chat line the Doe Lawsuit would never have arisen.
Thus, RNK urges that this Court interpret paragraph three as
requiring indemnification against all claims that can somehow be
traced back to the existence of Ripple's chat line operation, or to
at least recognize that there is ambiguity with regards to this
point. As explained below, we find that RNK's assertion is not
supported by the plain language of the Agreement read in its proper
context.
The plain language of the Agreement shows that its
purpose was mainly to allow Ripple to locate its equipment in RNK's
premises for the operation of Ripple's chat lines and to require
RNK to assign telephone numbers thereto. In light of this purpose
and reading the Agreement as a whole, it is evident that the aim of
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paragraph three was to protect RNK in case Ripple's tangible
equipment located at RNK's premises specifically caused damage to
adjacent property in RNK's facilities or bodily injury to persons
in the vicinity. This interpretation is buttressed by the other
provisions of paragraph three, which illustrate that the concern
giving rise to this paragraph pertained to damage to property or
bodily injury specifically caused by the fact that Ripple's
tangible equipment would be located in RNK's premises and not
offsite. For example, paragraph three establishes that (1) "[RNK]
shall not have any liability for any loss or damage related to
[Ripple]'s equipment," (2) "[RNK]'s casualty and fire insurance
policies apply only to RNK's facilities," and (3) "[Ripple] will be
responsible for insuring own equipment." (Emphasis added).
It is also telling that paragraph three specifically
restricts the indemnification obligation set forth therein to
claims associated with Ripple's "equipment," as opposed, for
example, to claims associated with Ripple's "services" or the
"existence of Ripple's chat lines." Thus, the Agreement's
language is consistent with the less expansive interpretation of
paragraph three at which we arrive.
In light of the above, it would be unreasonable to find
that paragraph three requires Ripple to indemnify RNK against all
claims that can somehow be traced back to the existence of Ripple's
chat lines. RNK's attempts at construing the scope of paragraph
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three in a broader fashion unreasonably distort the language and
context of the Agreement.6
In sum, we find that the indemnification obligation set
forth in paragraph three unambiguously relates to claims
specifically caused by Ripple's tangible equipment located in RNK's
premises and does not encompass all claims that can somehow be
traced back to the existence of Ripple's chat lines. Accordingly,
we conclude that Ripple is not obligated under paragraph three of
the Agreement to indemnify RNK against the claims asserted by Jane
Doe in the Doe Lawsuit. We affirm the district court's judgment on
this issue.
2. Paragraph Ten of the Agreement
The other contractual provision that RNK asserts as a
basis for its indemnification claim against Ripple is paragraph ten
of the Agreement. Said paragraph, which is titled "Customer
[Ripple] Conduct," states, in relevant part, that "[Ripple] shall
be responsible for all marketing and content and will hold RNK
harmless from all claims arising from such." In other words, under
paragraph ten, Ripple agreed to indemnify RNK from all claims
6
In fact, during oral arguments for this appeal, RNK admitted
that its broad interpretation of the indemnity provision set forth
in paragraph three of the Agreement renders the indemnity provision
set forth in paragraph ten as redundant. We find that RNK's
reading of paragraph three is unreasonable in the context of the
Agreement and decline to adopt the same. See Cohen v. Steve's
Franchise Co., Inc., 927 F.2d 26, 29 (1st Cir. 1991) (Under
Massachusetts law, "[a] reading rendering contract language
meaningless is to be avoided." (citing Shea, 418 N.E.2d at 601)).
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arising from all "marketing" and "content."7 The district court
found that the term "content" was used in this paragraph to refer
to the prompts, menus and information publicized on the various
chat, conference and information lines contemplated in the
contract, and did not encompass third party conversations taking
place through RNK's network and Ripple's chat lines. Accordingly,
the district court concluded that paragraph ten imposed no
obligation on Ripple to indemnify RNK against Doe's claims, since
said claims did not arise as a result of such prompts, menus and
information. RNK challenges the district court's conclusions and
alleges that Doe's claims are covered under paragraph ten. We
agree with the district court and for the reasons stated below
affirm its judgment.
RNK contends that the term "content" encompasses the
third party conversations carried out through RNK's network and
Ripple's chat lines, such as Doe's chat line conversations with her
future assailants. RNK further alleges that Doe's claims should be
deemed to have arisen from such "content." However, RNK's
allegations are not supported by the plain language of the
Agreement read in its proper context.
7
RNK's contention -- that paragraph ten requires indemnification
from Doe's claims -- focuses solely on Ripple's obligation to
indemnify against claims arising from "content." We limit our
analysis accordingly and do not address Ripple's obligation to
indemnify against claims arising from "marketing."
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The language of paragraph ten illustrates that the
indemnification obligation set forth therein was intended to
protect RNK against Ripple's conduct. In particular, it is
noteworthy that paragraph ten is titled "Customer [Ripple] Conduct"
and states in its first sentence that "[Ripple] shall abide by all
State and Federal regulations applicable to its operation." It
further states, "[i]f [Ripple] do[es] not, RNK may terminate this
agreement if the violation continues for over seven days after
notice to [Ripple]." These provisions evince that the purpose
behind paragraph ten was to protect RNK from possible unlawful
conduct by Ripple. When read in proper context, it is clear that
this paragraph requires that Ripple indemnify RNK from any claims
arising from Ripple's marketing and content. Therefore, we find
that the term "content," within the meaning of the Agreement,
relates to material generated by Ripple (i.e., the prompts, menus
and information publicized by Ripple on the various chats) and does
not encompass the traffic (i.e., third party conversations) that
went through RNK's network and Ripple's chat lines. We agree with
the district court that the textual language of paragraph ten, when
read in the context of the Agreement, is not reasonably susceptible
to the interpretation that Ripple undertook to indemnify RNK for
claims arising from conversations of third party customers that
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Ripple did not generate and could not monitor.8 Such conversations
may not reasonably be considered Ripple's "content" within the
meaning of the Agreement. RNK does not point to any evidence in
the record that leads to a different result.9
In light of the above, we find that the conversations
carried out by Doe and her assailants through RNK's network and
Ripple's chat lines are not considered Ripple "content" within the
meaning of the Agreement. Accordingly, we find that Doe's claims
fall outside the scope of the indemnification obligation set forth
in paragraph ten, even if it is assumed that such claims arose from
conversations she carried out through Ripple's chat lines.
In sum, we find that the district court correctly found
that Ripple is not obligated under paragraph ten of the Agreement
to indemnify RNK against Doe's claims. Accordingly, we affirm the
district court's order on this issue.
8
The district court presumed that Ripple was not authorized to
listen in on or record third party conversations on its chat lines.
RNK has not disputed this finding.
9
In its appellate brief, RNK cites to testimony by the President
of RNK stating -- without providing a basis therefor -- that he
"assumed" that the term "content" included the third party
conversations that took place in Ripple's chat lines. This
evidence is not sufficient to support RNK's suggested
interpretation of paragraph ten or to prove that the Agreement is
ambiguous on this issue. "[C]ontracts depend on objective
manifestations of consent and not on uncommunicated subjective
expectations." RCI Ne. Servs. Div. v. Boston Edison Co., 822 F.2d
199, 204 (1st Cir. 1987) (internal quotation marks and citation
omitted).
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IV. Conclusion
For the reasons stated, we conclude that Ripple is not
obligated under the Agreement to indemnify RNK against claims
asserted by Jane Doe in the Doe Lawsuit. We, therefore, affirm the
district court's grant of summary judgment in favor of Appellees.
Affirmed.
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