[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DECEMBER 15, 2009
No. 07-15931 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 06-00317-CV-WS-M
THE OHIO CASUALTY INSURANCE COMPANY,
Plaintiff
Counter Defendant
Appellee,
versus
HOLCIM (US), INC.,
EDWARD J. THIERRY, JR.
DENNIS R. ODOM,
Defendants
Counter Claimants
Appellants,
PATRICIA WHITE,
et al.,
Defendants,
INDUSTRIAL SERVICES OF MOBILE, INC.,
Counter Defendant
Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(December 15, 2009)
Before BARKETT and WILSON, Circuit Judges, and POGUE,* Judge.
PER CURIAM:
This case returns to us after we certified two questions to the Supreme Court
of Alabama regarding its law of indemnity. The Ohio Casualty Insurance
Company v. Holcim (US), Inc. (“Holcim I”), 548 F.3d 1352, 1359 (11th Cir. 2008).
Now that we have received the answers, Holcim (US), Inc. v. The Ohio Casualty
Insurance Company (“Alabama opinion”), __ So. 3d __, No. 1080223, 2009 WL
3805799 (Ala. Nov. 13, 2009), we reverse the district court’s grant of summary
judgment to the counter-defendants The Ohio Casualty Insurance Co. (“Ohio
Casualty”) and Industrial Services of Mobile, Inc. (“ISOM”), and remand the case
to the district court for further proceedings consistent with this opinion and our
opinion in Holcim I.
*
Honorable Donald C. Pogue, United States Court of International Trade Judge, sitting
by designation.
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QUESTIONS CERTIFIED
For the background to this case, we rely on our prior opinion in Holcim I,
548 F.3d at 1354–56. We concluded Holcim I by certifying these questions:
1. WHETHER, UNDER ALABAMA LAW, AN INDEMNITEE
MAY ENFORCE AN INDEMNIFICATION PROVISION AND
RECOVER DAMAGES FROM AN INDEMNITOR RESULTING
FROM THE COMBINED OR CONCURRENT FAULT OR
NEGLIGENCE OF THE INDEMNITEE AND INDEMNITOR?
2. WHETHER, UNDER ALABAMA LAW, A COURT MAY LOOK
BEHIND (OR BEYOND) THE PLEADINGS (IN PARTICULAR,
THE COMPLAINT) OF AN UNDERLYING TORT ACTION IN
DETERMINING THE APPLICATION OF AN
INDEMNIFICATION PROVISION BETWEEN AN INDEMNITOR
AND INDEMNITEE?
The Supreme Court of Alabama answered the second question “yes.”
Alabama op. at *6. It reworded the first question as follows and answered “yes” to
the revised version:
1. WHETHER, UNDER ALABAMA LAW, AN INDEMNITEE
MAY ENFORCE AN INDEMNIFICATION PROVISION CALLING
FOR THE ALLOCATION OF AN OBLIGATION OR DAMAGES
BASED ON THE RESPECTIVE FAULT OF THE INDEMNITEE
AND INDEMNITOR?
Alabama op. at *5.
These answers allow us to complete our analysis from Holcim I, where we
found that the contract language “to the extent . . . attributable . . . to [Holcim]”
was ambiguous because it admitted of two “reasonably plausible” interpretations.
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Holcim I, 548 F.3d at 1357. Now we know that both those interpretations are
cognizable under Alabama law.1 Therefore the ambiguity that we found earlier
remains. Our conclusion that the contested language is ambiguous as a matter of
law means that the facts now come into play. See, e.g., Alfa Life Ins. Corp. v.
Johnson, 822 So. 2d 400, 405 (Ala. 2001) (“If the application of such rules [of
contract construction] is not sufficient to resolve the ambiguity, factual issues arise
. . . .”). This observation is underscored by the Supreme Court of Alabama’s
1
In rewording our first question, the Supreme Court of Alabama seemed to shift its focus
from the respective fault of the parties to the terms of the contract. We do not think that this
change disturbs our earlier analysis. Nor does the Supreme Court’s explanation of its “yes”
answer alter our conclusion. In highlighting the requirement of Alabama law that an indemnity
agreement use “clear and unequivocal language,” Alabama op. at *4, and that “two parties
knowingly, clearly, and unequivocally enter into an agreement whereby they agree that the
respective liability of the parties will be determined by some type of agreed-upon formula,”
Alabama op. at *5, the Supreme Court of Alabama seemed to us only to be restating the standard
imposed on all indemnity agreements by Alabama law, which will continue to guide the
interpretation of the contract in this case. The Supreme Court of Alabama explicitly declined to
express an opinion about the proper interpretation of the language at issue here. Alabama op. at
*4. Moreover, our conclusion that the contract language is ambiguous does not require the
ultimate finding that no valid agreement on this issue existed between the parties. Alabama’s
requirement for “clear and unequivocal” language seems to us to apply to those agreements in
which an indemnitor agrees to assume the burden of losses attributable to the fault of the
indemnitee. See, e.g., Royal Ins. Co. of Am. v. Whitaker Contracting Corp., 824 So. 2d 747, 753
(Ala. 2002) (“[I]f the parties knowingly, evenhandedly, and for valid consideration, intelligently
entered into an agreement whereby one party agreed to indemnify the other for its negligent acts
and omissions, and the agreement is expressed in clear and unequivocal language, then that
agreement is enforceable under Alabama law.”) (internal quotations omitted). Here, however,
Holcim only seeks indemnification from ISOM to the extent of Holcim’s losses that were caused
by ISOM, pursuant to an analysis of comparative fault. Appellant’s Br. at 35, 19, 31. Holcim
made the same argument in the district court. Holcim’s Br. in Opp’n to Mot. for Summ. J.
(D.86) 8, R. at 1108. (To that extent, Holcim does not seem to seek an “indemnity agreement”
as much as a simple split of damages apportioned by fault.) The bottom line is that Supreme
Court of Alabama, in its answers to the certified questions, has permitted the enforcement of an
indemnification agreement through an allocation of respective or comparative fault, which
allocation need not rest solely on the face of an underlying pleading.
4
answer to the second certified question, that a court may look beyond the pleadings
of the underlying tort when determining an indemnification agreement, as Holcim
asked the district court to do in this case.
REVERSED AND REMANDED.
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