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Keating v. United Instruments12/8/1999
19 (Tex. 1968).
It is true, as United/Tokyo contends, that each of these States has different requirements for construing indemnification agreements as they relate to the indemnitee's own negligence. See, e.g., Bartlett, 547 P.2d at 808 (indemnification agreement need not contain express language covering owner's negligence); Merrimack School Dist. v. Nat'l School Bus Serv., 140 N.H. 9, 12, 661 A.2d 1197, 1199 (1995) (express language is not necessary where parties' intent to indemnify negligence of another is clearly evident); Ethyl Corp. v. Daniel Const. Co., 725 S.W.2d 705, 706 (Tex. 1987) (express language required for indemnification agreement to cover indemnitee's own negligence). In light of our Conclusion that the lawsuit did not involve Mooney's independent negligence, however, these distinctions are irrelevant to this case. Therefore, we hold that the trial court did not err in applying New Hampshire law in interpreting the indemnification and defense agreement.
Finally, United/Tokyo contends that because the jury returned a defense verdict, the indemnification and defense provision is not applicable. Under New Hampshire law, " s a general rule, the proper interpretation of a contract is ultimately a question of law for this court, and we will determine the meaning of the contract based on the meaning that would be attached to it by reasonable persons." Galloway v. Chicago -Soft, 142 N.H. 752, 756, 713 A.2d 982, 984 (1998) (quotation omitted). The contractual provision in question contemplates both indemnification and defense against suit. The first part of the indemnification and defense provision addresses liability for a possible verdict against Mooney because of United/Tokyo's altimeter. As discussed above, the underlying suit in this case concerned the altimeter provided by United/Tokyo. Because United/Tokyo and Mooney received a defense verdict, there was no judgment against Mooney requiring United/Tokyo to provide indemnification. The second part of the indemnification and defense provision, however, required United/Tokyo to assume Mooney's "defense and preparation for the defense (and costs therefor) of any suit or threatened suit brought against [Mooney]." This language is not contingent upon a verdict against Mooney and United/Tokyo. Having found that United/Tokyo has failed on appeal to demonstrate that any issue other than the altimeter was substantially at issue in the trial, we need not consider United/Tokyo's argument that it is not responsible for Mooney's defense against unrelated claims. The trial court was therefore correct in ruling that the indemnification agreement required United/Tokyo to pay Mooney's costs in defending the lawsuit.
Affirmed.
BRODERICK, J., did not sit; the others concurred.
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