MEMORANDUM OPINION
Aсcording to the verdict of a jury and other undisputed facts revealed by the record, Plaintiff Greg Wallace was injured while he was acting as an independent contractor hauling dirt during construction of the John Kilpatrick Turnpike in north Oklahoma City. Sherwood Construction Company, Inc., the general contraсtor on the project, had subcontracted with Farmer Brothers Company to haul dirt from the site, and Farmer Brothers had hired Wallace, apparеntly as an independent contractor, to assist in fulfilling that subcontract.
Wallace claimed his injuries resulted from negligence by a Sherwood employee. The jury determined Wallace’s injuries were caused equally by his own negligence and that of the Sherwood employee and assessed
Farmer Brothers responded, arguing there was no indemnification because Sherwood did nоt show that any negligence by Farmer Brothers caused Wallace’s injuries, and requested summary judgment in its favor. The trial court granted judgment to Sherwood on its third pаrty petition, and Farmer Brothers appeals.
The relevant facts are undisputed. Wallace was on the job site at the time he was injured, perfоrming tasks in furtherance of Farmer Brothers’ subcontract with Sherwood. The jury assessed Wallace’s negligence at 50% and Sherwood’s at 50%. The record doеs not indicate that the jury was asked to assess any negligence on the part of Farmer Brothers.
The subcontract contained an indemnification сlause which provided, in pertinent part:
SECTION 26. INDEMNIFICATION. Subcontractor [Farmer Brothers] agrees to indemnify and hold harmless the owner and/or the contractor [Shеrwood] and their agents and employees, from and against any and all demands, claims, suits, causes of action, damages, losses, penalties, and/оr expenses, including attorneys fees, arising out of or resulting from subcontractor’s performance of the work required by the subcontract, regardless of whether such demand, claim, suit, cause of action, loss, penalty, or expense is incident to or arises out of conditions or omissions permitted оr acts performed by an indemnitee unless said demand, claim suit, cause of action, damage, loss, penalty or expense is caused by the solе negligence of the indemnitee.
As one basis for reversal, Farmer Brothers contends Sherwood was required to show that some negligence by Farmer Brоthers was a cause of Wallace’s injuries. According to Farmer Brothers, the jury found only Wallace and Sherwood responsible for those injuries, and Wаllace’s claim was not one “arising out of or resulting from subcontractor’s performance of the work required by the subcontract.”
Farmer Brothers сites no authority to establish that negligence by Farmer Brothers was required. Farmer Brothers asks us to follow the rule adopted in
Jones v. Strom Construction Co. Inc.,
Jones involved a indemnification agreement with language quite similar to that involved here. A subcontractor’s employee was injured when he fell through a floor which collapsed due to lack of shoring beneath. The employee sued the general contractor whose job it was to make sure the floor was safe. There was no evidence that the employee did anything to contribute to his injuries. As we understand the rule recognized in Jones, the mere presence of the subcontractor on the job site, through its agents, would not be sufficient to create the causal connection between performance of the subcontract and the loss.
The dissent in Jones interpreted “arising out of’ as merely requiring “causation-in-fact.” Noting that the subcontractor’s рresence on the job site, through its employee, was a “cause in fact” of the accident, the dissent found that sufficient to invoke the indemnificatiоn agreement. Neither party has cited any Oklahoma authority precisely on point, and we have discovered none.
However, the reasoning adopted by the
Jones’
dissenters is more consistent with Oklahoma’s interpretation of “arising out of’ in other similar contexts. In worker’s compensation cases, “arising out of employment” requires a “causal relationship between the act engaged in at the time the injury occurs and the employment requirements.”
Ogg v. Bill White Chevrolet Co.,
Farmеr Brother’s performance of the subcontract was a “cause in fact” of Wallace’s injury. The record is undisputed that Wallace was on the job site as Farmer Brothers’ agent, performing duties required of Farmer Brothers under the subcontract. But for this performance of the subcontract, Wallaсe would not have been injured. The uncontro-verted facts are consistent only with the conclusion that Wallace’s injuries arose out of the pеrformance of the subcontract.
Farmer Brothers also argues that the indemnification clause should not be interpreted to allow Sherwood to be indemnified for losses caused, at least in part, by its own negligence. We agree with Farmer Brothers that the rule stated in
Webb v. Western Carter County Water and Sewage Corporation,
[Ijndemnity agreements will not be construed to obligate the indemnitor to indemnify the indemnitee against losses arising from the indemnitee’s own negligence unless the contract makes it unequivocаlly clear that that is what the parties intended.
However, in interpreting an indemnity contract, we must also follow the rules applicable generally to contracts, and we must attempt to ascertain the intention of the parties, based upon the whole contract, and give effect to that intеnt if it can be done consistent with legal principles.
Luke v. American Surety Co. of New York,
Morе importantly, the subcontract language provides the indemnity will apply “unless said ... loss is caused by the sole negligence of the indemnitee.” If, as argued by Fаrmer Brothers, they did not intend to indemnify Sherwood from losses caused, at least in part, by its own negligence, the quoted exception was not necessаry and would be treated as surplus. Such an interpretation violates 15 O.S.1991 § 157, which requires us to “give effect to every part” of a contract. Considered аs a whole, the subcontract unequivocally and clearly required Farmer Brothers to indemnify Sherwood for losses attributable to its own negligence, unless Shеrwood’s negligence was the sole cause of the loss.
The uncontroverted facts as revealed by the evidentiary materials submitted by the parties are consistent only with judgment in favor of Sherwood. The trial court’s judgment is affirmed.
AFFIRMED.