The opinion of the court was delivered by: Schiller, J.
The National Railroad Passenger Corporation ("Amtrak") has a contract with Dyer Quarry, Inc. ("Dyer") that includes an indemnification provision. Amtrak argues that this indemnification provision is applicable to the action presently before the Court, in which Paul Fekete sued Amtrak and Rob's Towing and Hauling, Inc. ("Rob's Towing") for negligence after Fekete's dump truck was damaged on Amtrak's property. Amtrak moved for declaratory relief that Dyer must indemnify it. Because the Court disagrees with Amtrak's reading of the indemnification provision, Amtrak's motion is denied.
On June 21, 2010, Fekete was operating his dump truck to deliver stone from Dyer to Amtrak's property on Mill Road in Bensalem, Pennsylvania. (Am. Compl. ¶¶ 8, 10.) During the delivery, an agent of Amtrak directed Fekete to proceed down an unstable access road. (Id. ¶ 11.) Fekete's dump truck sank into the ground and an Amtrak employee negligently attempted to move the vehicle. (Id. ¶¶ 12-13.) Amtrak contacted Rob's Towing to remove the dump truck, and an employee of Rob's Towing negligently hooked the tow truck to the front of the dump truck, which caused additional damage. (Id. ¶¶ 15-19.) The Amtrak employee abandoned the scene. (Id. ¶ 15.) The dump truck remained stuck until June 22, 2010, when it tipped over onto its side and was totaled. (Id. ¶ 20.) Fekete sued Amtrak and Rob's Towing for the property damage they caused and his lost wages.
Amtrak filed a third-party Complaint against Dyer for contribution and indemnity. According to Amtrak, Fekete was delivering the stone that Amtrak had purchased from Dyer on behalf of Dyer and "[p]ursuant to paragraph 24 of the General Provisions for Supplies Contracts Funded by the United States . . . Dyer Quarry, Inc. has a duty to defend, indemnify and hold harmless [Amtrak] for any and all damages allegedly sustained by Paul J. Fekete on June 21, 2010." (Amtrak's Third-Party Compl. ¶ 8.)
According to the indemnification agreement between Dyer and Amtrak: Contractor agrees to defend, indemnify, and hold harmless Amtrak, its officers, directors, employees, agents, servants, successors, assigns, and subsidiaries (collectively "Indemnified Parties"), from and against any claims, losses, liabilities (including without limitation environmental liabilities), penalties, fines, demands, causes of action, suits, costs and expenses incidental thereto, (including costs of defense and attorneys' fees) (collectively "Claims"), which any of the Indemnified Parties may hereafter incur, be responsible for or pay as a result of breach of warranty, injury or death of any person, or damage to or loss (including loss of use) of any property, including property of parties hereto, arising out of or in any degree directly or indirectly caused by or resulting from supplies, material, deliverables, products or equipment supplied by, or from activities or, or work performed by Contractor, Contractor's officers, employees, agents, servants, subcontractors, or any other person acting for or with the permission of Contractor under the Contract, or as a result of Contractor's failure to perform its obligations in compliance with the Contract Documents. (Amtrak's Mot. for Declaratory J. Ex. B [Indemnification Contract] ¶ 24.)
The parties engaged in discovery and motion practice, and on July 9,
2012, Amtrak filed the motion for declaratory judgment now before the Court.*fn1
Amtrak believes that the above-quoted language entitles it to
indemnification from Dyer for any liability arising out of the
incident involving Fekete's dump truck.
Amtrak contends that "[t]he incident which forms the basis of this litigation involves a claim by a subcontractor of Dyer Quarry, Paul Fekete d/b/a Big Evil Trucking, for damages and injury to his property which were allegedly incurred as a result of work performed under the Contract between Amtrak and Dyer Quarry." (Amtrak's Mem. of Law in Supp. of Mot. for Declaratory Relief [Amtrak's Mem.] at 3.) According to Amtrak, the language of its agreement with Dyer is broad enough to encompass Amtrak's own negligence.*fn2 The parties agree that under the contract, the laws of the District of Columbia apply to the interpretation of the parties' agreement. (Id. ¶ 13.)
An indemnitor may agree to indemnify an indemnitee against the indemnitee's own negligence. See Princemont Constr. Corp. v. Balt. & Ohio R.R., 131 A.2d 877, 878 (D.C. 1957). However, if a contract fails to explicitly cover the indemnitee's own negligence, the intent to cover such losses must otherwise plainly appear from the agreement. Moses-Ecco Co. v. Roscoe-Ajax Corp., 320 F.2d 685, 687 (D.C. Cir. 1963). Though no magic words are required, the intent to waive negligence must be clear. Id. at 688; see also Rivers & Bryan, Inc. v. HBE Corp., 628 A.2d 631, 635 (D.C. 1993) ("If parties seek to provide indemnification not just for the actions of the indemnitor, but also for the actions of the indemnitee . . . when the indemnitee is itself negligent . . . there must be a clear intention to do so that is apparent from the face of the contract.").
Amtrak relies largely on Moses-Ecco to support its argument that Dyer agreed to indemnify Amtrak for its negligence. In that case, George Williamson, who worked for Moses-Ecco, sued Roscoe-Ajax, a general contractor, for negligence because it failed to properly install and maintain guards rails, causing Williamson to fall several stories and suffer serious injuries. Roscoe-Ajax filed a third-party complaint against Moses-Ecco, its subcontractor for concrete work, for indemnification based upon an agreement between the parties. Following a bench trial after the underlying lawsuit settled, the court entered judgment in favor of Roscoe-Ajax and against Moses-Ecco on the indemnification issue. In its appeal, Moses-Ecco argued that "the indemnification provision of the subcontract lacks the positiveness which the law requires to indemnify Roscoe-Ajax for its own affirmative negligence." Moses-Ecco, 320 F.2d at 687.
The provision in question read:
The Subcontractor (Moses-Ecco) agrees in the performance of this contract * * * that he will at all times indemnify and save harmless the Owner and the Contractor (Roscoe-Ajax) against any loss, because of injury or damage to persons or property arising or resulting from the performance of this contract, including any and all loss, cost, damage or expense which the Owner and/or Contractor may sustain or incur on account of any claim, ...