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June 26, 1981

Betty M. ZETEK
UNITED STATES of America, et al.

The opinion of the court was delivered by: GILES


Plaintiff, Betty Zetek, a cafeteria employee of Cuisine Limited, third party defendant, commenced this action against defendant, United States of America, pursuant to the Federal Tort Claims Act. 28 U.S.C. ยงยง 2671-2680. She sustained injuries on April 5, 1977 on the property of the Post Office in the cafeteria kitchen operated by Cuisine when a shelving unit fell in a walk-in refrigerator on which Cuisine goods were stacked. The United States impleaded Cuisine and has now moved for summary judgment, asserting that there is no genuine issue as to any material fact and, further, that the United States is entitled to judgment in its favor as a matter of law because its contract with Cuisine contains a full indemnity clause. The United States asserts that the contract language is clear and unambiguous as to Cuisine's duty to indemnify and hold the United States harmless from all claims arising from injuries to persons on the leased premises except where caused by the sole negligence of the United States. It contends that the deposition discovery demonstrates that the injury to plaintiff was caused to some degree by Cuisine's negligence.

 Cuisine counters in a cross-motion for summary judgment that the cafeteria contract requires indemnification only for liability arising from its own negligence in the performance of the agreement and argues that to interpret the contract as requiring full indemnity for the United States' negligence would be contrary to public policy. Cuisine argues for invocation of comparative negligence.

 Interpretation of an indemnity clause in a government contract is governed by guidelines set forth in United States v. Seckinger, 397 U.S. 203, 90 S. Ct. 880, 25 L. Ed. 2d 224 (1970). Among the general contract principles cited there is the rule that a contract should be construed most strongly against the drafter, the United States. Id. at 211, 90 S. Ct. at 885. The Court also adhered to the rule that a contract "should not be construed to permit an indemnitee to recover for his own negligence unless the (trial) court is firmly convinced that such an interpretation reflects the intent of the parties" "clearly and unequivocally." Id. at 211, 215, 90 S. Ct. at 885, 887. It also noted that this rule "is particularly applicable to a situation in which there is a vast disparity in bargaining power and economic resources between the parties, such as exists between the United States and particular government contractors." Id. at 212, 90 S. Ct. at 885.

 Although the Court cited a clause recommended by the American Institute of Architects (AIA) as an example of a valid indemnity provision, it explicitly stated that the example was used for illustrative purposes only, and was not an attempt to identify the specific language required to shift ultimate liability to the indemnitor. Id. at 213, n.17, 90 S. Ct. at 886, n.17. The Court stressed that, as with other contracts, "interpretation is largely an individualized process, with the conclusion in a particular case turning on the particular language used against the background of other indicia of the parties' intention." Id.

 In moving for summary judgment, Cuisine has not proffered any evidence of "other indicia" of the parties' intent beyond a mutual desire to contract. Cuisine voluntarily bid for the very contract about which it now complains. There is no evidence that Cuisine attempted to eliminate or modify the indemnification clause in question. On the other hand, there is evidence that Cuisine, presumably knowingly, accepted the indemnity provision when it executed the contract document. Therefore, the court shall look to the plain language of the contract to determine the intent of the parties with respect to indemnification.

 An analysis of the contract language shows "clearly and unequivocally" the parties' intent to shift the responsibility for the United States' negligence to Cuisine in all situations except where the loss, liability or damage can be said to have resulted solely from the United States' negligence. The clause, in relevant part, states:

XIV A. The contractor (Cuisine) shall assume all liability for and shall indemnify and save harmless the U.S. Postal Service ... from and against any loss, damage, or injury which may be sustained by any person or persons, whether they be employees, agents, or representatives of the parties hereto, or third persons, as a result of the performance of this agreement .... The contractor shall assume the defense thereof and shall reimburse the U.S. Postal Service ... for any judgments, payments or expenses occasioned to them in connection with claims, demands, or suits of which notice has been given by the U.S. Postal Service.

 A literal reading of phrases such as, "shall assume all liability;" "shall indemnify and save harmless;" and "from and against any loss," demonstrates a clear and specific intent to place upon Cuisine, as indemnitor, full responsibility for any and all claims, even where the indemnitee was the only negligent party. It is only subparagraph C of Paragraph XIV which limits Cuisine's duty to indemnify to situations where the liability does not arise from the United States' sole negligence. It reads:

C. Nothing in this clause shall relieve, or be construed to relieve the U.S. Postal Service, its officers, agents, or employees from any liability growing out of its or their sole negligence, nor shall anything in this clause be construed as an assumption of liability on the part of the contractor for any such negligence.

 Similar language was used in the AIA model version cited in Seckinger:

The contractor shall indemnify and hold harmless the owner ... from and against all claims ... arising out of ... the performance of the work, provided that any such claim ... is caused in whole or in part by any negligent act or omission of the contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable regardless of whether or not it is caused in part by a party indemnified hereunder. AIA Document A 201, Sept. 1967.

 The only distinction between the AIA provision and that at issue here is that the former includes a specific reference to the fact that the contractor must indemnify the indemnitee regardless of its negligence. However, as the Court stated, that is not determinative:

We specifically decline to hold that a clause that is intended to encompass indemnification for the indemnitee's negligence must include an "indemnify and hold harmless" clause or that it must explicitly state that indemnification extends to injuries occasioned by the indemnitee's negligence. Thus, ... we ...

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