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FabArc Steel Supply5/20/2005
. v. McCollough, 776 So. 2d 741, 746 (Ala. 2000) " f all other rules of contract construction fail to resolve the ambiguity, then, under the rule of contra proferentem, any ambiguity must be construed against the drafter of the contract." 776 So. 2d at 746. However,
" he rule of contra proferentem is generally a rule of last resort that should be applied only when other rules of construction have been exhausted. 3 Arthur L. Corbin, Contracts ยง 559 at 268-69 (1962); see also Molton, Allen & Williams, Inc. v. St. Paul Fire & Marine Ins. Co., 347 So. 2d 95, 99 (Ala. 1977) (indicating that ambiguities must be interpreted against the party drawing the contract if the circumstances surrounding the contract do not make the terms clear)."
Lackey v. Central Bank of the South, 710 So. 2d 419, 422 (Ala. 1998).
Contract terms will not be construed against the party who framed them if other rules of construction would be thwarted in their legitimate operation by the application of that rule of construction. Denson v. Caddell, 201 Ala. 194, 77 So. 720, 722 (1917); G.F.A. Peanut Ass'n v. W.F. Covington Planter Co., 238 Ala. 562, 192 So. 502 (1939). " he intention of the party to a contract controls its interpretation and ... to ascertain such intention, regard must be had to the subject matter, the relationship of the parties at the time of the contract, and the law which it is justly inferable they had in view while contracting." G.F.A. Peanut Ass'n, 238 Ala. at 566, 192 So. at 506. "'It is well settled that where there is uncertainty and ambiguity in a contract, it is the duty of the court to construe the contract so as to express the intent of the parties.'" BellSouth Mobility Co. v. Cellulink, Inc., 814 So. 2d 203, 216 (Ala. 2001) (quoting Weathers v. Weathers, 508 So. 2d 272, 274 (Ala. Civ. App. 1987)).
" f the trial court finds the contract to be ambiguous, it 'must employ established rules of contract construction to resolve the ambiguity.' Voyager Life Ins. Co. v. Whitson, 703 So. 2d 944, 948 (Ala. 1997). If the application of such rules is not sufficient to resolve the ambiguity, factual issues arise:
"'If one must go beyond the four corners of the agreement in construing an ambiguous agreement, the surrounding circumstances, including the practical construction put on the language of the agreement by the parties to the agreement, are controlling in resolving the ambiguity.'
"Id. at 949. Where factual issues arise, the resolution of the ambiguity becomes a task for the jury. McDonald v. U.S. Die Casting & Dev. Co., 585 So. 2d 853 (Ala. 1991)."
Alfa Life Ins. Corp. v. Johnson, 822 So. 2d 400, 405 (Ala. 2001).
In construing indemnity provisions, "the degree of control retained by the indemnitee over the activity or property giving rise to liability is a relevant consideration. This is true because the smaller the degree of control retained by the indemnitee, the more reasonable it is for the indemnitor, who has control, to bear the full burden of responsibility for injuries that occur in that area."
City of Montgomery v. JYD Int'l, Inc., 534 So. 2d 592, 595 (Ala. 1988). See also Royal Ins. Co. of America v. Whitaker Contracting Corp., 824 So. 2d 747 (Ala. 2002).
In construing an ambiguous contract to determine the intent of the parties, the Court should be guided by the following principles. The Court derives the intent of the parties from the contract as a whole. Ex parte University of South Alabama, 812 So. 2d 341 (Ala. 2001); Land Title Co. of Alabama v. State ex rel. Porter, 292 Ala. 691, 299 So. 2d 289 (1974). The relations of the parties, the subject matter of the contract,
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