The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
MEMORANDUM OPINION AND ORDER OF COURT GRANTING PPG'S MOTION FOR PARTIAL SUMMARY JUDGMENT (DOC. NO. 140)
After consideration of Plaintiff PPG Industries, Inc.'s Motion for Partial Summary Judgment (doc. no. 140), and Defendants Central Industrial Maintenance, Inc. and Westfield Insurance Co., et al.'s Memorandum in Opposition to PPG Industries, Inc.'s Motion for Partial Summary Judgment (doc. no. 149), the Court will grant the motion for partial summary judgment because there is no genuine issue of material fact, and under the applicable law, PPG Industries, Inc. ("PPG") is entitled to judgment as a matter of law on the issue of Central Industrial Maintenance Inc.'s ("CIM's") liability to indemnify PPG, based on the express agreement for indemnification, and on the issue of the reasonableness of PPG's action in settling the underlying action (the Coburn case).
A. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides: The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
The moving party has the burden of establishing that there is no genuine issue as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986). Once the moving party has met this burden, the burden then shifts to the nonmoving party to produce sufficient evidence for a jury to return a verdict for that party. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
PPG is entitled to summary judgment since the indemnification agreement at issue is plain and unambiguous, and the indemnitor was adequately notified of the indemnity claim under the terms of that agreement. See, e.g. Vankirk v. Green Const. Co., 195 W.Va. 714, 466 S.E.2d 782 (1995); Valloric v. Dravo Corp., 178 W.Va. 14, 357 S.E.2d 207 (1987); Charter Communications VI, LLC v. Eleaser, 412 F. Supp.2d 588 (S.D. W.Va. 2006). Express indemnity agreements are governed by contract principles, and "[i]n construing the language of an express indemnity contract, the ordinary rules of contract construction apply." Martin v. Norfolk Southern Ry. Co., 2006 WL 890306 (S.D. W.Va. 2006), citing Vankirk, supra at Syllabus Pt. 4, and Valloric, supra at Syllabus Pt. 1. As with other types of contracts, full effect must be given to the plain meaning of an express indemnity contract's terms. Martin, 2006 WL 890306 at *2, citing Nisbet v. Watson, 162 W.Va. 522, 251 S.E.2d 774, 780 (1979).
The West Virginia*fn1 Supreme Court of Appeals generally describes a modified burden of proof for an indemnification claim as follows:
[W]here the party having a duty to indemnify has been notified or been made a party to the underlying proceedings and given an opportunity to participate in its settlement negotiations, courts have concluded that the defendant-indemnitee should not be required to prove the plaintiff's actual ability to recover the amount paid in the settlement. It is sufficient if the defendant-indemnitee proves that he was potentially liable to the plaintiff.
Valloric, 178 W.Va. at 18, 357 SE 2d at 211-12. See also North Carolina Monroe Const. Co. v. BWB North Carolina Monroe Const. Co. v. BWB Associates, Inc., 873 F.2d 1440, at *4 (4th Cir. 1989) (it is necessary that indemnitor have had notice of its potential liability, and that the amount of the settlement be reasonable, citing Valloric). The West Virginia Supreme Court of Appeals explained in Valloric: "This position is based on a legal policy that encourages settlements. This policy would not be promoted if a party who has a right to be indemnified settles the case on a good- faith basis and then is required to prove actual liability." Id., 178 W.Va. at 18-19, 357 S.E.2d at 212. See also State ex rel. Evans v. Robinson, 197 W.Va. 482, 475 S.E.2d 858 (1996) ("It is clear 'that the policy of the law is to encourage settlements.'").
B. The Underlying Lawsuit is Within the Scope of the Indemnification Agreement
The West Virginia Supreme Court of Appeals' potential liability standard requires summary judgment in favor of PPG in this case, since it is beyond reasonable dispute that defendant CIM was both a party to the underlying litigation (Coburn) and was informed on numerous occasions of PPG's intent to seek indemnification pursuant to the parties' express indemnification agreement.
As the West Virginia Supreme Court of Appeals stated, the law of West Virginia recognizes that "[i]n most cases, if an indemnitor does not assume control of the indemnitee's defense, he will be held liable for the attorney fees and costs incurred by the indemnitee in the defense of the original action." Harris v. Allstate Ins. Co., 208 W.Va. 359, 362, 540 S.E.2d 576, 579 (2000), quoting State ex rel. Vapor Corp. v. Marick, 173 W.Va. 770, 774-75, 320 S.E.2d 345, 350 (1984).
During the course of performance of their Agreement, PPG requested CIM to provide transportation services to remove hazardous waste from its Natrium Plant to a waste treatment facility of a non-party, Envirite of Ohio, Inc., located in Canton, Ohio. CIM hired an independent contractor, Emerald Environmental Services, Inc. (Emerald), also a non-party in this suit, to transport the hazardous materials to Envirite's facility. On November 4, 2002, during the course of his employment with Emerald, Edward Coburn sustained serious chemical burn injuries to his left eye while unloading materials from a truck at the Ohio facility. The Court finds that the Coburn claim was within the scope of the indemnification agreement.
Mr. Coburn was injured performing work required of defendant CIM under its agreement with PPG and the applicable contract documentation and work orders. CIM agreed to an explicit and very broad indemnity clause that included the terms "claim," "liability," "loss," ...