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BABCOCK & WILCOX COMPANY v. FISCHBACH & MOORE (06/22/71)

decided: June 22, 1971.

BABCOCK & WILCOX COMPANY, APPELLANT,
v.
FISCHBACH & MOORE, INC.



Appeal from judgment of Court of Common Pleas of Beaver County, Sept. T., 1964, No. 341, in case of The Babcock & Wilcox Company v. Fischbach and Moore, Incorporated.

COUNSEL

Oran W. Panner, with him Panner, Holland and Autenreith, for appellant.

E. Y. Calvin, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Montgomery, J.

Author: Montgomery

[ 218 Pa. Super. Page 325]

The issue before us concerns the interpretation to be placed on the indemnity provision of a written contract entered into by appellant (B. & W.) and appellee (F. & M.). It is therefore a question of law reviewable in this appeal, Dravo-Doyle Company v. Royal Indemnity Company, 372 Pa. 64, 92 A.2d 554 (1952).

The provision is as follows: "Fischbach & Moore, Inc., Contractor, hereby agrees to indemnify and save harmless The Babcock & Wilcox Company, its successors and assigns, from any and all claims, loss, damage, or expense on account of: (a) the death of, or injuries or damage to any person or persons whatever, including death at any time resulting therefrom, or (b) damage or destruction of any property, no matter to whom belonging, arising in whole or in part out of the wrongful acts or omissions of the Contractor, its employees, agents, or servants, or of any sub-contractors under its contract or the employees, agents, or servants of any of them. This agreement shall not include injuries or damage due wholly to the negligence, whether by affirmative act or by failure to exercise vigilance, of

[ 218 Pa. Super. Page 326]

The Babcock & Wilcox Company, its successors or assigns."

The trial judge, Hon. Ralph Scalera (now retired), found this clause to be ". . . ambiguous or at best reasonably susceptible of two different interpretations" and "Therefore, it must be construed against B. & W." Therefore, he concluded as a matter of law, "2. The indemnity agreement did not include or cover a loss due to B. & W.'s own negligence." The court en banc composed of President Judge John N. Sawyer and Judge James E. Rowley affirmed this conclusion after the retirement of Judge Scalera.

We find no ambiguity in the terms of the agreement but, on the contrary, find it explicit in its terms. It clearly and unequivocally shows the intention of the parties to have been that F. & M., the contractor, agreed to indemnify B. & W. for any and all claims, etc., arising in whole or in part out of the wrongful acts or omissions of F. & M., its employees, agents or servants, which included claims from accidents for which B. & W. was partly at fault, but not to do so for claims arising wholly from the negligence of B. & W.

Perry v. Payne, 217 Pa. 252, 66 A. 553 (1907), established the principle that when a contractor agrees to indemnify the landowner from loss arising from accidents to mechanics, laborers employed in the construction work, or to persons passing when the work is being constructed, there arises a presumption that it was not intended that the promise should cover losses due to accidents involving such persons due to the negligence of the landowner (indemnitee). To cover indemnification in such cases the contract must contain an expression clearly and unequivocally indicating such intention, especially when the contract has been prepared by the ...


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