In this appeal, a general contractor asserts that it is entitled, by contract, to indemnification from its subcontractor even if the general contractor’s negligence caused the damages for which indemnification is sought. The trial court entered a directed verdict against the claim for indemnification, explaining that “the contract does not unambiguously provide that [the subcontractor indemnitor] will indemnify [the general contractor indemnitee] for the contractor’s own negligence.” Based on controlling precedent, we conclude that the indemnification clause in the contract is not ambiguous on the broad scope of the indemnification provision, and therefore reverse and remand.
I.
The Accident
Dorothea McColl, an employee of John Canning & Company (Canning), sued N.P.P. Contractors, Inc. (N.P.P.) in a tort action for personal injuries and related damages she sustained while working on a renovation project in which Canning was a subcontractor. 1 N.P.P., thе general contractor, in turn filed a third-party complaint against Canning for indemnification based upon a clause in their contract. The jury in the primary trial found that N.P.P.’s negligence in erecting, maintaining and/or inspecting the scaffolding was a proximate cause of McColl’s injuries, and awarded McColl $413,000 in damages for her personal injuries and McColl’s husband $5,000 in damages for loss of consortium.
The Contract and the Indemnification Clause
The indemnification clause at issue, labeled “Liability and Indemnity Insurance,” reads in relevant part as follows:
The Subcontractor [Canning] shall indemnify and save harmless the Contractor [N.P.P.] and Owner from any and all claims and liabilities for property damage and persona] injury, including death, arising out of or resulting from or in connection with the execution of the work.
When entering into the agreement, Canning altered and initialed six different clauses in the contract, which had been drafted by N.P.P. The Liability and Indemnity Insurance clause was not among them. 2
The Directed Verdict
While the jury was dеliberating in the primary ease, the trial court entered a directed verdict for Canning stating:
I think that the contractual clause is ambiguous, and as such under the case law, including Rivers and Bryan versus HBE Corporation, 3 I am ruling in favor of Canning and Compаny because it does not— the contract does not unambiguously provide that Canning Company, the subcontractor, will indemnify the contract [sic] N.P.P. for the contractor’s own negligencе.
In rejecting N.P.P.’s argument that the contract language unambiguously provided for full indemnification, the trial court referred to “testimony [by N.P.P.’s president] that he interpreted [the indemnification clаuse] as only providing indemnification of work done by ... Canning’s negligence.” 4
II.
“In reviewing the grant or denial of a motion for directed verdict, this court, like the trial court, must view the evidence and аll reasonable inferences in the light most favorable to the nonmoving party.”
Washington Metro. Area Transit Auth. v. Bell,
This court has recently decided two cases which summarize аnd clarify the rule of interpretation we apply to claims for indemnification, based on contract, of a negligent general contractor against a non-negligent subcontrаctor,
W.M. Schlosser Co. v. Maryland Drywall Co.,
In Schlosser this court recognized that
[a]n indemnity provision ... “should not be construed to permit an indemnitee to recover for his [or her] own negligence unless the court is firmly convinced that such an interpretation rеflects the intention of the parties.” If a party “expects to shift responsibility for its negligence ... the mutual intention of the parties to this effect should appear with clarity from the fаce of the contract.”
satisfied that the language of the contract 6 is sufficiently clear that [the subcontractor] is responsible not only for its own negligence, but that its liability also “stretche[s] to encompass [the contraсtor’s] negligence as well.”
Highlightirig the contract language in which the subcontractor agreed to indemnify the contractor for “any and all claims ... arising out of ... or in connection with the еxecution of the work,” this court in Schlos-ser concluded that
[t]he language of th[e] contract, from the viewpoint of the parties at the time the contract was made, is “so broad and sweeping as to plаinly reveal an intent to encompass losses incurred in whole or in part by the negligence of the indemnitee.”
Schlosser, supra,
when the terms of an indemnity agreement are so broad and comprehensive, “the presumption is that if the parties had intended some limitation of the all-embracing language, they would have expressed such limitation.”
Schlosser, supra,
Schlosser
was closely followed by
Grunley, supra,
which involved an indemnification clause worded
exactly
the same as the-clause found in the N.P.P.-Canning contract.
Compare Grunley, supra,
In light of this precedent, we are constrained to conclude that the indemnification language before us in this appeal аlso is unambiguous and enforceable. We are unpersuaded by Canning’s invitation to distinguish this case from the cases analyzed above because Canning was an “innocent indemnitor.” As we havе previously held, the indemnification clause agreed to by Canning is “so broad and sweeping” that it covers damages “incurred
in whole or in part
by the negligence of the indemnitee.”
Schlosser, supra,
Because the contract language is unambiguous, we do not consider the testimony of N.P.P.’s president Almaraz concerning his subjective intent as to the scope of the indemnification clause.
See 1010 Potomac Assocs. v. Grocery Mfrs. of Am., Inc.,
As a matter of law, therefore, under the contract languаge before us, N.P.P. is enti-tied to indemnification from Canning for N.P.P.’s liability to McColl.
Reversed and Remanded.
Notes
. McColl was working for Canning, doing decorative painting on a wall near the ceiling of a room while standing on scaffоlding which was provided by N.P.P. McColl stepped back to look at her work and partially fell through a gap on the surface of the scaffolding.
. In contrast, Paragraph 17 of the contract, entitled "Damages for Delay,” was one of the contract provisions altered and initialed by Canning. As drafted by N.P.P., the paragraph’s concluding sentence read: "Subcontractor is responsible for ary and all [delay] damages caused to Contractor." The sentence was amended by Canning to read: "Subcontractor is responsible for any and all damagеs caused to Contractor, arising out of its [subcontractor’s] errors or omissions." (Emphasis added to highlight Canning’s amendment.)
.Rivers & Bryan, Inc. v. HBE Corp.,
.At trial, N.P.P.'s president, Angel Almaraz, was cross-examined about his interpretation of the indemnification clause of the contract:
Q. [] And did you understand, Mr. Almarez [sic], that [Canning] was going to indemnify N.P.P. for damages that would be caused to N.P.P. as a result of the execution of the work of [Canning]?
[Objection by Counsel for N.P.P.]
A. I didn’t understand it that way. I understand it in the way it’s put in the contract. []
Q. Well, did you understand by writing that сontract, is it your interpretation of that contract that [Canning] would indemnify N.P.P. if N.P.P. sustained some damage because of work that was done by Page Restoration Company [another cоntractor on the job]?
[Objection by Counsel for N.P.P.]
A. No, but Page Restoration Company by [Canning]. []
Q. [ ] So you understood that it was indemnifying N.P.P. for damages of N.P.P. caused by the work of [Canning] correct?
A. Correct.
. These cases were decided after the trial court’s ruling before us.
. In Schlosser, the indemnification clause interpreted by this court varied only slightly from the clause in dispute in this case:
The subcontractor shall promptly indemnify and save and hold harmless the General Contractor and the Owner from any and all claims, [and] liabilities and expenses for property damage or [and] personal injury; including death, arising out of or resulting from or in connection with the exeсution of the work provided for in this Agreement.
.
Moses-Ecco
is a decision binding on this court. See
M.A.P. v. Ryan,
. Two members of the panel concurred, stating that
this panel is compelled to reach the result it does because of M.A.P. v. Ryan,285 A.2d 310 (D.C.1971). Were we free to do so, I wоuld reach a different result on the record before us....
Grunley, supra,
.In this regard, the issue is not whether the statement is against the interest of a party and therefore would be admissible as an exceрtion to the hearsay rule. Almaraz’s testimony is not hearsay.
. Almaraz's testimony is confused and, at times, relates to an irrelevant point, the liability of Canning for the negligent work of Page Restoration Company, another subcontractor. At most, Almaraz’s testimony can be summarized as indicating that Canning would be liable to N.P.P. for the negligence of Canning and not for the negligence of another subcontractor; his testimony is silent, however, on the question before us, whether Canning would or would not be liable for damages resulting from N.P.P.'s negligence.
