This is аn appeal of a declaratory judgment accepted on certification from the Court of Appeals. The issues presented involve the interpretation to be given to an indemnification clause in the U-Haul dealership contract to which appellant Vitalis Dirk and respondent are parties.
Appellant Vitalis Dirk operated a service station in Moses Lake, Washington. In 1971, he entered into a U- *609 Hаul dealership contract with respondent Amerco Marketing Company of Spokane, and became an authorized U-Haul dealer for the Moses Lake area.
Dirk was instructed to tell anyone renting U-Haul equipment from him that they were to contact a U-Haul dealer if they had trouble with the equipment and when he received calls from people who had rented U-Haul equipment in other locations, he was to help the customer with the equipment.
On July 26, 1971, Judy Nelson rented a Ford Econoline van from an authorized U-Haul dealer in Seattle. On July 27, 1971, the van became disabled near Moses Lake and she parked it almost completеly on the shoulder of 1-90. She then contacted Dirk as the authorized U-Haul dealer in the area. He attempted to start the van but concluded there was something wrong with the camshaft as the motor would not run.
Upon returning tо his station, Dirk called the respondent in Spokane. He requested and received permission to tow the disabled U-Haul van into his service station.
With his son, Brian, he drove his pickup to the disabled van, attached a сhain, and proceeded to pull the van off the shoulder and onto the freeway. Dirk was driving the pickup and Brian was steering the van. When the pickup and van were on 1-90, the van was struck by a vehicle approaching from the rear. The four occupants of the other car commenced suit. All four suits were settled and payments made by or on behalf of the appellants.
Appellants commenced this action seeking indemnification under the terms of the U-Haul dealership contract which is the subject of this litigation. The contract was drafted by the respondent. It states, in relevant part:
To hold Dealer harmless from any and all liаbility for property damage or personal injury arising out of accidents occasioned by the negligence of Marketing Co. or by defects in U-Haul equipment, provided such equipment is being rented or used under a duly executed U-Haul Rental Contract.
*610 The Superior Court found that, at the time of the collision, the U-Haul van was defective as that term is used in the hold-harmless clause in the contract; the appellant was negligent in the manner in which he was towing the disabled van; and that the respondent was not negligent and the negligence of the appellant cannot be imputed to the respondent.
The Superior Court also found that, under the authority of
Jones v. Strom Constr. Co.,
The first issue raised by the appellants is whether the trial court erred in interpreting the words "occasioned by" as used in the U-Haul dealership contract to mean " caused by." They argue that the accident would not have occurred but for the defective van being stalled on the side of the road. They argue further that the respondent must indemnify the appellant if the defective van was a cause in fact of the accident. Respondent asserts the phrase- "occasioned by" requires a causal relationship that is direct and that no such relationship was shown by the appellant or found in this case.
At the time the trial court considered the phrase "occasioned by," and found it to be ambiguous, the case of
Northern Pac. Ry. v. Sunnyside Valley Irrigation Dist.,
In Northern Pacific, Yakima County agreed to indemnify Nоrthern Pacific for any damage "occasioned by" the county's improvements which were water pipelines and culverts. A break occurred in the bank of one of the irrigation canals — not an improvement — and flood waters flowed into the culvert. The culvert could not hold the water and, as a result, one of Northern Pacific's roadbeds washed away. In a split decision by the Court of Appeals, the majority held at page 953 that "any use of the culvert that results in damage or loss to the plaintiff is covered by the indemnity agreement." Judge Munson dissented, saying at page 955, "the district did not obligate itself, under the indemnity provisions . . . for any damage sufferеd by the railroad not proximately caused by their operation or maintenance work." In our reversal of the Court of Appeals, we held, at page 923:
The washout of plaintiff's roadbed occurred indeрendent of the culvert. The deluge resulted from a source only indirectly related to the culvert, and the washout of the roadbed was clearly not "occasioned" by the culvert. To extend this hold-harmless provisiоn so far would be unreasonable. The culvert itself did not fail to operate effectively as a culvert; it only failed to transform itself into a tunnel at the crucial moment.
Insofar as there is ambiguity in the 1913 permit, therefore, we must limit its scope to damage actually "occasioned by the improvements," that is, resulting from a cause directly related to the culvert.
(Italics ours.) Though the culvert in Northern Pacific indirectly caused the washout, it was insufficient to create a legal liability. A simple causation in fact was insufficient in that case, as it is here.
In Jones v. Strom Constr. Co., supra at 521, this court interpreted a hold-harmless clause indemnifying the contractor from all claims "arising out of," "in connection with," or "incident to" thе subcontractor's "performance." This is broader language than "occasioned by." This court *612 held that "unless an overt act or omission" on the part of the subcontractor "caused or concurred in causing the loss involved, indemnification would not arise." In Jones, the contractor's negligence was the sole cause of the accident. The court observed that the accident would not have happened but for thе subcontractor's presence on the job; however, this was not sufficient to constitute a "cause" of the accident. The respondent compares Jones to this case, arguing that, although the accident would not have happened unless the defective van was on the roadside, the defect is a remote and indirect cause of the accident; that the negligence of the appellant was the solе, direct cause of the accident. We essentially agree with respondent's analysis although we note that it is inexact to the extent that it is comparing a situation of no culpability (the subcontractor) to а situation of remote culpability (the defective van).
In
Tucci & Sons, Inc. v. Carl. T. Madsen, Inc.,
Appellants are not challenging the Superior Court's finding they were negligent. They are in essence urging us to interpret the clause in question to indemnify them for their own acts of negligence. In
Griffiths v. Henry Broderick, Inc.,
An often-repeated rule of construction for interpreting indemnity clauses is that they are to be viewed realistically, recognizing the intent of the parties to allocate as between them the cost or expense of the risk of losses or damages arising out of performance of the contract. Jones v. Strom Constr. Co., supra. Bearing this rule in mind, we find it difficult to believe that, as a business practice, Amerco intended to indemnify U-Haul dealers for their own acts of negligence without sрecific wording to that effect or the payment of a special premium as protection against all liability.
The trial court found the van was defective; the appellants were negligent; and the phrase "occasioned by" meant "caused by." By its finding that the respondent had no obligation to hold appellants harmless for the damage resulting from the collision, the court impliedly found a direct causal relatiоnship to exist between the appellants' negligence and the damage. Even when we consider the remote connection of the defective van with the accident, we find that the trial court did not err in its cоnclusion that the appellants must bear the loss resulting from the collision.
Appellants also raise the question whether the alleged ambiguity in the hold-harmless clause should be construed in favor of the indemnitee or thе indemnitor. This issue *614 presents rules of construction which are contradictory as applied to this case: A general rule that the contract should be construed against the drafter, the respondent here, and а specific rule that an indemnity clause should be construed in favor of the indemnitor. See Jones v. Strom Constr. Co., supra. However, since the Northern Pacific case cured the previously existing ambiguity in the phrase, we find it unnecessary to reach this issue.
We affirm the holding of the trial court.