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Service Merchandise Co. v. Hunter Fan Co.7/11/2005
ement cannot be implied. This is so because:
ublic policy is reluctant to cast the burden for negligent actions upon those who are not actually at fault. Public policy seeks to encourage people to exercise due care in their activities for fear of liability, rather than to act carelessly cloaked with the knowledge that an indemnity contract will relieve such indifference. Unless a contract for indemnification explicitly and expressly states that the negligence of the indemnitee is covered, courts will not interpret such an agreement as a promise to save the indemnitee from his own negligence.
Although SM argues that the 1998 purchase agreement obligated Hunter to indemnify SM for SM's pre-1998 negligence, we find no such express language in the agreement and we will not imply such terms. Because the indemnity provisions in the 1998 contract failed to expressly, plainly, clearly, and unequivocally state that Hunter agreed to indemnify SM as to SM's pre-1998 negligence, Hunter incurred no obligation to indemnify SM for its defense in the claims asserted against SM in Boss's lawsuit. It follows that Hunter is not obligated to defend and indemnify SM for SM's past conduct. The trial court properly rejected SM's attempt to have the broad exculpatory indemnification language of the 1998 agreement apply retroactively to Hunter's obligations as to the product sold in 1994.
2. SM contends that the trial court erred in denying its motion for summary judgment and by granting partial summary judgment to Hunter because there are no public policy reasons that preclude SM's claim for contractual indemnity for the claims of negligence pending against it. In light of our holding in Division 1, this argument lacks merit.
3. SM contends that the trial court erred in denying its motion for summary judgment and by granting partial summary judgment to Hunter because the 1998 contract contains an insurance clause that independently requires Hunter to defend and indemnify SM, as a matter of law, for all claims asserted by Boss. We disagree.
The 1993 agreement - not the 1998 agreement - was the operative contract. The 1993 contract required Hunter to obtain liability insurance that included SM as a third party. Paragraph 12 of the 1993 agreement stated:
12. INSURANCE. Vendor shall carry a liability insurance policy with a Broad Form Vendor Endorsement, with Buyer listed as an additional insured. Product liability coverage shall be on an occurrence basis (not on a "claims made" basis) and shall survive after Products have been sold by Buyer to its customers. The full nature and extent of liability coverage required shall be as determined by Buyer in its sole discretion.
Nothing in Paragraph 12 of the 1993 agreement obligated Hunter to insure against SM's negligence, mistake, or misconduct or against SM's gross negligence or entire want of care. The requirement that Hunter name SM as an additional insured did not create an independent basis that would require Hunter to defend and indemnify SM for SM's own negligence or gross negligence. To find otherwise would effectively negate the public policy that one cannot be indemnified for one's own negligence unless the contracting parties expressly and explicitly agree to such indemnification in writing.
Judgment affirmed. Johnson, P. J., and Barnes, J., concur.
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