 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Service Merchandise Co. v. Hunter Fan Co.7/11/2005
was or is alleged to have resulted from the fault or negligence of Buyer or anyone for whom Buyer may be responsible . . . . (Emphasis supplied to new terms.)
In sum, the 1998 agreement would appear to obligate Hunter to protect and defend (if SM so elected) and to hold harmless and indemnify SM from all losses and claims, including death, regardless of whether that death was entirely or partially attributable to SM's own negligence or fault. SM argues that the 1998 contract "was the only contract in full force and effect between Hunter and Service Merchandise at the time Ms. Boss filed the instant lawsuit in 2002, by virtue of a clause which expressly superseded and replaced all previous contracts between the Parties." Relying upon the new language in Paragraph 14 of the 1998 purchase agreement, SM asserts that Hunter agreed to defend and indemnify SM for all claims "regardless of whether or not the death, injury or loss was or is alleged to have resulted from the fault or negligence of ." In effect, SM claims that the indemnification provisions in the 1998 purchase agreement applied retroactively to Hunter's allegedly defective product, the air purifier purchased by Shirley from SM several years earlier.
In urging this contract construction, SM relies upon part of one sentence in the final unnumbered paragraph of the 1998 agreement that stated:
The terms of this Agreement shall apply to all Purchase Orders accepted by Vendor after the date hereof, and shall replace and supersede all prior agreements concerning the subject matter of this Agreement. Vendor agrees to the terms and conditions contained herein and on the attached Forms, all of which constitute the entire Agreement between parties.
SM's argument emphasizes the latter part of the sentence stating "and shall replace and supersede all prior agreements concerning the subject matter of this Agreement," while ignoring the first part of the same sentence which stated, " he terms of this Agreement shall apply to all Purchase Orders accepted by Vendor after the date hereof". . . (Emphasis supplied.) However, a contract "should be construed by examining the agreement in its entirety, and not merely by examining isolated clauses and provisions thereof." The 1998 agreement plainly and unambiguously contemplated that its terms would apply prospectively and so provided, stating, "shall apply to all Purchase Orders accepted by [Hunter] after the date hereof." The phrase "and shall replace and supersede all prior agreements concerning the subject matter of this Agreement" must be read in its context and in conjunction with the remainder of the sentence. In other words, the terms of the 1998 agreement would apply to future purchase orders placed by SM that Hunter accepted at which point the 1998 terms and conditions would "replace and supersede all prior agreements" concerning such future purchase orders.
Notwithstanding this construction, SM argues that these terms do not preclude retroactive application of the 1998 contract to the air purifier sold in 1994. SM asserts that Boss's claim for negligence "only ripened and matured in 2000, after the 1998 Contract was the only contract in effect between the parties," regardless of whether the alleged negligence derived from SM's pre-1998 conduct. SM maintains that by the time Boss "had a viable claim, the 1998 Contract had invalidated and replaced all preceding generations of the contract." We disagree.
As a matter of law, the scope of the written indemnification provisions must be strictly construed against SM, the indemnitee. Unless the words of a contract explicitly show an agreement to indemnify another party for his own negligence, such an agre
Page 1 2 3 4 5 Georgia Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|