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Berry v. Orleans Parish School Board6/21/2002
nce claims are based on the OPSB's alleged breach of a legal duty owed to its students. It alleges this duty was owed irrespective of the contract and thus the claims for alleged breach of this duty do not arise out of any of the services to be performed pursuant to the terms of the contract.
On the other hand, the OPSB argues all of the acts the plaintiffs allege caused their daughters' injuries arose out of the performance of services provided by Francis O'Gara, a Lighthouse employee, pursuant to the terms of the contract with Lighthouse. Thus, the OPSB alleges, because the plaintiffs' negligence claims are based on Mr. O'Gara's conduct, the claims arise out of the performance of services to be performed under the contract and thus the language of the indemnity clause clearly requires Lighthouse to defend and indemnify it for these claims. The OPSB further contends the allegation that it is partly at fault does not affect Lighthouse's obligation to defend and indemnify because the indemnity agreement specifically applies "regardless of whether or not it [the injury ] is caused in part by a party indemnified hereunder."
I find the indemnity agreement is subject to multiple interpretations and does not unequivocally require Lighthouse to indemnify the OPSB for the OPSB's own negligence. All of the cases the OPSB cites and relies upon involve indemnity agreements specifically using the term negligence. The present indemnity agreement does not use the term negligence and is broad and general in its applicability. See Stewart v. Winn Dixie Louisiana, Inc., 96-599 (La.App. 5th Cir. 12/11/96), 686 So.2d 907 (broad and general words alone do not necessarily import an intent to impose an obligation so extraordinary and harsh as to render an indemnitor liable to an indemnitee for damages occasioned by the sole negligence of the latter). Thus, considering this court's clear line of jurisprudence holding indemnity agreements will not be construed to indemnify an indemnitee against losses resulting to him through his own negligent acts unless such an intention is expressed in unequivocal terms, e.g., Polozola v. Garlock, Inc., 343 So.2d 1000, 1003 (La. 1977); Perkins v. Rubicon, Inc., 563 So.2d 258, 259 (La. 1990), I would reverse the court of appeal's ruling and reinstate the district court's judgment.
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