517 P.2d 349 | Mont. | 1973
No. 12501
I N THE SUPREME COURT OF THE STATE OF MONTANA 1973 BOYCE R. BALLARD, P l a i n t i f f and A p p e l l a n t , -vs - VOLLSTEDT KERR LUMBER COMPANY, e t a l . , Defendants and Respondents. Appeal from: D i s t r i c t Court of t h e F o u r t e e n t h J u d i c i a l D i s t r i c t , Honorable Nat A l l e n , Judge p r e s i d i n g . Counsel o f Record: F o r A p p e l l a n t : L a r s e n and G l i k o , G r e a t F a l l s , Montana David V. G l i k o a r g u e d , and D i r k H. Larsen a p p e a r e d ,
G r e a t F a l l s , Montana F o r Respondents: A l e x a n d e r , Kuenning and Miller, G r e a t F a l l s , Montana N e i l E. Ugrin a r g u e d , G r e a t F a l l s , Montana
S u b m i t t e d : September 1 4 , 1973 Decided : DEC 1 8 1& F i l e d : D ~ C 1 1m
M r . J u s t i c e John Conway H a r r i s o n d e l i v e r e d t h e Opinion of t h e
Court.
T h i s i s an a p p e a l from a summary judgment f o r d e f e n d a n t s e n t e r e d i n t h e d i s t r i c t c o u r t of t h e f o u r t e e n t h j u d i c i a l d i s t r i c t , Meagher County. P l a i n t i f f Boyce R , B a l l a r d brought t h e a c t i o n t o r e c o v e r damages f o r p e r s o n a l i n j u r i e s r e c e i v e d a s a r e s u l t of a l l e g e d n e g l i g e n c e of d e f e n d a n t s V o l l s t e d t Kerr Lumber Company and Yamhill Lumber Co.
Defendants o p e r a t e d a saw m i l l a t White Sulphur S p r i n g s , Montana. I n 1968 p l a i n t i f f e n t e r e d i n t o a c o n t r a c t w i t h d e f e n d a n t s t o h a u l l o g s t o t h e White Sulphur S p r i n g s m i l l . I n t h e l o g g i n g c o n t r a c t , s e v e r a l paragraphs a r e provided p r o t e c t i n g t h e l o g g i n g o p e r a t i o n s i n c l u d i n g f i r e l o s s e s ; and, paragraph 11 s p e c i f i c a l l y p r o v i d e s f o r " l i a b i l i t y i n s u r a n c e " w i t h s p e c i f i e d l i m i t s t o be c a r r i e d by t h e l o g g e r , and p r o v i d e s i n p a r t :
"It i s hereby understood and agreed t h a t t h e Logger s h a l l a t a l l times hold t h e V o l l s t e d t Kerr Lumber Co., V.K.V. Lumber Co. and t h e Yamhill Lumber Co. h a r m l e s s , f r e e and c l e a r from any c l a i m s o r r e s p o n s i b i l i t i e s r e g a r d i n g any employee o f t h e Logger from Bodily I n j u r y a n d / o r d e a t h and damage t o p r o p e r t y . * * *" Paragraph 13 o f t h e c o n t r a c t r e a d s : " ~ i e n s and Claims. Logger e x p r e s s l y a r e e s t o 7 indemnify and save Company and Company s p r o p e r t y harmless of and from any and a l l d e b t s , dues, c l a i m s , demands, l i e n s , c h a r g e s o r damages a r i s i n g o u t of o r connected w i t h l o g g e r ' s o p e r a t i o n s under t h i s c o n t r a c t which may be a s s e r t e d by any p e r s o n , a s s o c i a t i o n , c o r p o r a t i o n , f e d e r a l government o r any agency t h e r e o f . I' P l a i n t i f f a l l e g e d : t h a t a f t e r unloading a l o a d of l o g s
he used an e l e c t r i c h o i s t t o l i f t t h e unloaded t r a i l e r on t o h i s t r u c k , p r i o r t o h i s r e t u r n t o t h e timber f o r a n o t h e r l o a d of l o g s ; t h a t t h e h o i s t f a i l e d t o s t o p c a u s i n g t h e t r a i l e r bunk t o f a l l from t h e t r a i l e r s t r i k i n g him and c a u s i n g him s e r i o u s , p a i n f u l and permanent i n j u r i e s ; t h a t t h e e l e c t r i c h o i s t was owned, con- t r o l l e d and s e r v i c e d by d e f e n d a n t s ; and i t was used by p l a i n t i f f a t d e f e n d a n t s ' r e q u e s t . P l a i n t i f f was an independent c o n t r a c t o r under t h e p r o v i s i o n s of t h e logging c o n t r a c t .
We note here, in considering the district court's summary judgment, that plaintiff's allegation of a previous malfunction of the hoist is inserted for the first time as an issue on appeal. No such allegation appears in plaintiff's complaint.
Plaintiff received no workmen's compensation because he was considered an "independent contractor" and not an "employee1' or [11] workman" entitled to benefits under Montana's workmen's Compen- sation Act.
The sole issue on appeal is whether the indemnity clause, heretofore quoted, provides indemnification to the logger as against the company?
Plaintiff argues that under the provisions of the contract defendants seek to limit liability for their own negligent acts. He contends that under recent decisions of this Court defendants cannot do so and cites in support: Western Construction Co. v. ~osby's Inc., 146 Mont. 313, 406 P.2d 165; Lesofski v. Ravalli Co. Elec. Coop., 151 Mont. 104, 439 P.2d 370.
Plaintiff, recognizing there is a diversity of opinion on the issue and his position is a minority position, relies heavily on the California case of Vinnell Company v. Pacific Electric Railway Co., 52 C.2d 411, 340 P.2d 604, 607, 608. There, the court was called upon to consider a contract which purported to indemnify a party for his own negligent acts. The language of that contract was similar to that of the contract involved here. The court found the language did not save the indemnitee from liability for damages resulting from its own negligence, and said:
"'1n the overwhelming majority of the cases the result reached by their interpretational efforts can be condensed into the simple rule that where the parties fail to refer expressly to negligence in their contract such failure evidences the parties' intention not to provide for indemnity for the indemnitee's negligent act.' "[Ilf an indemnitor such as the plaintiff is to be made responsible for the negligent acts of an indemnitee over whose conduct it has no control, the language im- posing such liability should do so expressly and unequivocally so that the contracting party is advised in definite terms of the liability to which it is ex- posed. The indemnification clause in the present case, by not expressly stating that the defendant was protected against acts of its own negligence, failed to meet this requirement. I I Vinnell was followed by three cases: Markley v. Beagle,
59 Cal.Rptr. 809, 429 P.2d 129; Goldman v. Ecco-Phoenix Elec. Corp., 41 Cal.Rptr. 73, 396 P.2d 377; Price v. Shell Oil Company, 85 Cal.Rptr. 178, 466 P.2d 722. All three cases limit the strict construction rule sought by plaintiff to affirmative acts of negligence. Here, plaintiff alleged no affirmative act of negli- gence by defendants, therefore the cases are not applicable. Couple this with the language quoted heretofore from paragraph 11 of the contract, and the language is clear and explicit.
Plaintiff argues that in the recent case of Western Construction Co. v. ~osby's, Inc., 146 Mont. 313, 406 P.2d 165, [11] the indemnity agreement specifically and expressly named the lessor as a party to be indemnified from liability for actions arising out of the use of the defective equipment; therefore, the lessor was held to be validly indemnified since the indemnity agreement complied with the rule that * * 9~ 'the law does not favor one who endeavors to indemnify himself against his own negligence, and a provision in an instrument to do so will be strictly construed against the party relying upon it."' Plaintiff in basing his arguemnt on the above language of Western Construc- tion Co. either misreads or misunderstands that decision. A careful reading of the case shows that the quoted language is from a California case (City of Oakland v. Oakland Unified School Dist. of Alameda County, 141 Cal.App.2d 733, 297 P.2d 752) and the holding in that case was expressly rejected by this Court in Western Construction Co.
Plaintiff cannot successfully compare the fact situation here with Western Construction Co. There the indemnity clause speci- fically refers to an action arising out of the use of defective equipment, and the only contract between the indemnitee and in- demnitor involved t h e u s e of a s i n g l e p i e c e of equipment, a h o i s t i n g tower. I n t h e i n s t a n t c a s e , we have a l o g g i n g c o n t r a c t which i n v o l v e d a complex r e l a t i o n s h i p between t h e l o g g e r and t h e company g i v i n g r i s e t o an i n d e t e r m i n a b l e number of p o s s i b l e s i t u a t i o n s which could g i v e r i s e t o p o t e n t i a l c l a i m s , demands o r l i a b i l i t y . The v e r y language of t h e indemnity c l a u s e was i n t e n d e d t o be broad enough t o p r o t e c t t h e company from a l l of I I them, a s long a s t h e y involved a c t s connected w i t h ~ o g g e r ' s o p e r a t i o n s " .
The judgment of t h e d i s t r i c t c o u r t i s a f f i r m e d . , J u s t i c e J u s t i c e s .
