Southwick v. City of Rutland
35 A.3d 113
Vt.2011Background
- July 2005 City of Rutland and Vermont Swim Association (VSA) executed a use agreement granting VSA Whites Pool for its two‑day swim meet.
- Indemnity clause required VSA to defend, indemnify, and hold Rutland harmless from claims arising from VSA’s event and presence in Whites Park.
- Plaintiff-addition argued City negligent in installing/maintaining playground equipment where Addie Southwick injured.
- City asserted indemnity against VSA for claims arising from VSA’s event; City also asserted breach of contract for failure to procure insurance naming City as additional insured.
- Trial court granted City summary judgment on indemnity and breach of contract; City later entered $700,000 judgment against VSA.
- This appeal by VSA challenges the indemnity interpretation and its scope.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether indemnity covers the City's own negligence. | VSA contends clause lacks express intent to cover City's negligence. | City argues clause unambiguously covers claims arising from VSA presence and activities. | Indemnity covers City's negligence as unambiguous in language. |
| Whether Tateosian governs interpretation of the indemnity here. | Tateosian requires express language for indemnity of the indemnitee’s own negligence. | Contractual language and circumstances show clear intent to indemnify for all injuries from VSA event. | Tateosian does not control; clause unambiguously covers City-related injuries. |
| Are the contract’s language and surrounding circumstances comparable to Tateosian/Hamelin? | Argues broad language should be read narrowly under Tateosian. | Circumstances show arm’s‑length deal; broad clause reasonable for indemnity. | Circumstances indicate explicit intent to indemnify for injuries irrespective of City negligence. |
| Does the contract’s scope limit indemnity to VSA’s event area or extend to park-wide injuries? | Indemnity should be limited to VSA’s exclusive use area. | Language extends to all injuries arising from presence of VSA and its guests, anywhere related. | Indemnity extends to injuries arising from VSA’s event, even outside exclusive pool area. |
Key Cases Cited
- Tateosian v. State, 2007 VT 136 (Vt. 2007) (indemnity for own negligence requires explicit language; broad clauses need clear express intent)
- Hamelin v. Simpson Paper (Vt.) Co., 167 Vt. 17 (Vt. 1997) (express-disclosure rule not always required; but breadth and bargaining power matter)
- Furlon v. Haystack Mountain Ski Area, Inc., 136 Vt. 266 (Vt. 1978) (indemnity for injury from erection/operation of ski lift; language unambiguous, not limited to own negligence)
- Stamp Tech, Inc. v. Lydall/Thermal Acoustical, Inc., 2009 VT 91 (Vt. 2009) (contextual rule: express disclosure required for indemnity of indemnitee’s own negligence in contract)
- Batson-Cook Co. v. Indus. Steel Erectors, 257 F.2d 410 (5th Cir. 1958) (indemnity language must clearly express intent to cover the indemnitee’s negligence)
- United States v. Seckinger, 397 U.S. 203 (U.S. 1970) (contract interpretation; express intent needed for indemnifying for government’s negligence)