Invoking different provisions in the same indemnification agreement, each of two successful defendants in a “slip-and-fall” lawsuit has sought payment of its counsel fees from its codefendant. Each defendant has denied, on the other hand, that it has any obligation to indemnify its codefendant for the code-fendant’s counsel fees. We hold that under the terms of the parties’ contract, properly construed, neither party has a right to indemnification.
I.
L’Enfant Plaza Properties, Inc. and Loews Washington Hotel Corp. (collectively L’En-fant) 1 own and manage the L’Enfant Plaza Hotel in southwest Washington, D.C. At all times relevant to this dispute, American Budding Maintenance Company of New York (ABM) provided janitorial and related services to L’Enfant pursuant to a written service agreement.
On March 19, 1991, Michele Saranovich filed suit against L’Enfant, alleging that she had slipped and fallen on the marble floor of the hotel lobby, and that she had suffered personal injuries on account of L’Enfant’s negligence. L’Enfant filed an answer, in which it denied negligence, and a third-party complaint against ABM, in which it sought indemnification. L’Enfant claimed in essence that it had exercised due care, and that if Ms. Saranovieh’s allegations regarding the accident were correct, then her injuries resulted from ABM’s negligence, not L’En-fant’s. ABM responded to the third-party complaint by denying negligence and by cross-claiming against L’Enfant for indemnification. Ms. Saranovich filed an amended complaint in which she named both L’Enfant and ABM as defendants and alleged negligence on the part of both.
The case went to trial and, on April 8, 1993, the judge directed a verdict in favor of both defendants. The judgment established that no negligence had been proved on the part either of L’Enfant or of ABM. Both parties against whom a claim for indemnification has been made have thus been exonerated of any tortious conduct. No appeal was taken from the judgment.
Paragraph 8 of the Janitorial Service Agreement between L’Enfant (as Owner) and ABM (as Contractor) provides in pertinent part as follows:
[1] Contractor shall indemnify and hold harmless Owner from claims for injury, death and property damage due to negligent acts and omissions of Contractor, its agents and employees which arise out of work performed under this Agreement.
‡ ‡ ‡ ‡ ‡
[2] Owner shall indemnify and hold harmless Contractor from claims, including Workers’ Compensation claims, resulting from the condition of Owner’s premises or equipment.
(Bracketed numerals inserted.)
2
The parties vigorously contested the meaning of these provisions, with L’Enfant claiming a right to indemnification under the first and ABM asserting that it was entitled to indemnification under the second. The judge issued two written decisions construing the agreement, one on July 1,1993 and a second on September 21, 1993. The judge ruled that Clause 1 is plain and unambiguous and that “it is clear that the parties intended for the indemnification clause to become effective upon the filing of a claim.” He held that “[a] finding of negligence is not required to
With respect to Clause 2, the judge concluded that the “more ambiguous” term “condition” should not be construed as making L’Enfant responsible even for conditions which it did not create. Such a construction, according to the judge, would “shift the burden of ABM’s negligence to [L’Enfant], which is precisely adverse to the contract’s terms.” Accordingly, the judge held that ABM was not entitled to indemnification.
On October 27,1993, in conformity with his construction of the agreement, the judge awarded L’Enfant a total' of $16,462.19 in fees and costs, including $15,092.00 in counsel fees. ABM filed separate timely appeals from the orders of July 1, 1993 and October 27, 1993.
II.
“[T]he cardinal rule of interpretation [of contracts] is to ascertain, if possible from the instrument itself, the intention of the parties, and to give effect to that intention.”
Green v. Obergfell,
Contractual language is ambiguous if it is susceptible of more than one reasonable interpretation.
Howard Univ. v. Best,
Generally, the interpretation of an ambiguous agreement is for the trier of fact.
Best, supra,
The rule of strict construction applies with particular force where a party is seeking indemnification for costs incurred as a result of its own negligent acts or omissions.
Rivers & Bryan, supra,
The character of the indemnification sought is also significant. Here, each defendant is seeking payment of its counsel fees
The parties appear to have assumed that if the indemnification agreement applies to this controversy, it requires the indemnitor to compensate the indemnitee for the indemnitee’s counsel fees. The principles of narrow construction outlined above have been applied to the scope of the indemnitor’s duty as well as to its existence, however, and the courts have not readily inferred an obligation to indemnify a party for such fees in the absence of explicit and unambiguous contractual language so providing.
See, e.g., Queen City Coach Co. v. Lumberton Coach Co.,
In French, supra, the court aptly summarized the foregoing principles:
It is well settled that indemnity provisions are to be strictly construed against the party alleging a right to indemnification. Muldoumey v. Weatherking Products, Inc.,509 A.2d 441 , 443 (R.I.1986). See also Gordon v. Campanella Corp.,112 R.I. 417 ,311 A.2d 844 , 849-50 (1973) (citations omitted) (“Where money is sought because of an indemnity provision in a contract, we have emphasized that such clause will be strictly construed against the indemnitee”); Dower v. Dower’s Inc.,100 R.I. 510 ,217 A.2d 437 , 438 (1966) (“Following the rule that indemnity provisions must be strictly construed against the indemnitee, the courts in most of the states have refused to draw inferences from words of general import found in the apparently all-inclusive and catchall language of a general indemnity provision.”).
French’s [the indemnitor’s] analysis of Pretzer’s [the indemnitee’s] claims is wholly accurate:
The indemnity provision in the Release does not refer to attorneys’ fees, litigation expenses or court costs. Absent such specificity, the Release must be construed against Pretzer to exclude such items. There is no basis, therefore, to award attorneys’ fees to Pretzer.
.... A strict construction of the phrase “all loss and damage” does not permit me to read “including attorneys’ fees” into the phrase. Had Pretzer and French intended Pretzer to be indemnified for attorneys’ fees and court costs, they could easily have written the Release to read, “Pretzer is hereby indemnified against all loss and damage, including attorneys’ fees and related litigation expenses ...” However, it is not within the province of the Court to retroactively reformulate the terms of the parties’ Release; accordingly, Pretzer’s claim for indemnification from French for attorneys’ fees is denied.
Finally, paragraph 8 of the parties’ agreement was part of a proposal prepared by ABM. Ambiguous language in a contract is generally construed against the drafter, at least where the parties were relatively equal in bargaining power.
District of Columbia Dep’t of Housing & Community Dev. v. Pitts,
III.
We now apply the principles discussed above to Clause 1. L’Enfant asserts, and the trial judge held, that the language of that provision is unambiguous, and that Clause 1 was intended to become effective upon the filing of a claim. ABM agrees that the clause is unambiguous, but contends that its clear meaning is the opposite of that found by the trial judge. According to ABM, liability pursuant to Clause 1 must be premised upon a negligent act or omission on the part of ABM; a~ claim of negligence, says ABM, will not do.
“Disagreement between the parties as to the meaning of a contract does not,
ipso facto,
render it ambiguous.”
Clyburn, supra,
Clause 1 provides, in pertinent part, that “[ABM] ... shall indemnify and hold harmless [L’Enfant] from claims of injury ... due to negligent acts or omissions of [ABM].” It is unclear from this language whether the injury must in fact be due to ABM’s negligence, or whether the phrase “injury ... due to negligent acts or omissions of [ABM]” is simply descriptive of the kind of claim which must be filed. Clause 1 can reasonably be read in either way. In accordance with the authorities discussed in Part II of this opinion, uncertainty on this score must be resolved against the party seeking indemnification, here L’Enfant.
In
Ballard v. Ace Wrecking Co.,
Moreover, even if we were to assume that the obligation to indemnify pursuant to Clause 1 was triggered by the making of a claim of negligence — and we have held the contrary — that clause is silent on the question whether ABM’s duty to indemnify L’Enfant and to hold it harmless was intended to embrace the payment of L’Enfant’s
For the foregoing reasons, we cannot agree with the trial judge’s ruling that Clause 1 required ABM to pay L’Enfant’s counsel fees. L’Enfant did not invoke the canon of construction favoring resolution of ambiguities against the drafter, and in this instance that secondary canon is trumped in any event by the authorities on which we have relied.
IV.
Clause 2 requires L’Enfant to “indemnify [ABM] from claims resulting from the condition of [L’Enfant’s] premises_” ABM contends that, in contradistinction to Clause 1, Clause 2 “unambiguously” predicates L’Enfant’s liability on the filing of a claim, and not on a finding of negligence. ABM further asserts that Ms. Saranovich’s injuries resulted from a “condition” of the premises as to which L’Enfant was contractually required to indemnify ABM, notwithstanding the fact that this “condition” was of the very kind that its janitorial services were designed to prevent.
We reject ABM’s contention for several reasons. First, like Clause 1, Clause 2 does not explicitly provide for the payment of counsel fees, and no such obligation should be inferred where, as here, ABM wrote the agreement. Second, the word “condition” can reasonably be viewed as meaning “defective” condition, and if this is so, then Clause 2 contains an ambiguity similar to that in Clause 1, namely, whether the condition must
actually
be defective, or whether a
claim
of defectiveness is sufficient. Third, the agreement, and particularly paragraph 8, must be read as a whole, and it would be altogether unreasonable to construe a form contract drafted by ABM as obliging ABM to indemnify L’Enfant only in instances when ABM was actually at fault, but as requiring L’En-fant to indemnify ABM on the basis of a plaintiffs claim — here proved to be a fallacious one — that L’Enfant was negligent. “[W]hen an instrument is susceptible of two constructions — the one working injustice and the other consistent with the right of the case — that one should be favored which standeth with the right.”
Noonan, supra,
V.
For the foregoing reasons, the order of July 1, 1993, which is the subject of No. 93-CV-1382, is affirmed in part and reversed in part. The order of October 27, 1993, which is the subject of No. 93-CV-1468, is reversed. The case is remanded to the trial court with directions to vacate the award in
So ordered.
Notes
. There is some dispute between the parties as to the precise role in this litigation of these two corporations. Our disposition of the merits makes it unnecessary to resolve this dispute.
. Clause 1, quoted above, is followed by a sentence which we shall call Clause 1A:
Contractor shall not be liable for delay, loss or damage caused by warfare, riots, strikes, boycotts, criminal acts, acts or omissions of others, fire, water damage, natural calamity, or causes beyond Contractor’s reasonable control.
Neither party has quoted or relied on Clause 1A.
. In denying ABM’s motion for reconsideration, the judge also held that ABM was estopped from arguing that its obligation to indemnify could be triggered only by a finding of negligence because, in his view, ABM had previously argued the contrary. See note 6, infra.
. It has been held, on the other hand, that "[t]he obligation to defend, at no cost to the [indemni-tee], may fairly be interpreted as meaning that the parties intended ... the indemnitor to pay attorney's fees.”
Perry v. Chevron USA, Inc.,
. The trial judge, as we have seen, relied on authorities holding that a "secondary” tortfeasor may be entitled to indemnification from the primary tortfeasor.
See, e.g., Nordstrom v. District of Columbia,
. In
Ballard,
by contrast, the indemnification clause explicitly included counsel fees.
Id.,
The trial judge concluded that Ballard was not decisive as to Clause 1 because, in his view, ABM had previously taken the position that the indemnification agreement became operative upon the assertion of a claim, rather than upon a finding of liability, and that ABM should not be permitted to argue the contrary. ABM had made this contention, however, in relation to Clause 2, relying on specific language in that clause which differed in some measure from that in Clause 1. Under these circumstances, we cannot agree with the trial judge’s view that principles of estoppel apply.
. Clause 1A, quoted in note 2, supra, provides that ABM shall not be liable, inter alia, for "acts or omission of others ... or causes beyond [ABM's] reasonable control." It is difficult to reconcile this provision with the notion that ABM must pay L’Enfant’s counsel fees when ABM has been judicially exonerated of any responsibility for Ms. Saranovich’s accident, and when her injuries thus appear to have resulted from causes over which ABM had no control. Because the parties have not addressed the meaning or purpose of Clause 1A, however, we elect not to place major reliance on that clause, and reach our decision instead on the basis of Clause 1, appropriately construed.