Ambiguous indemnity clause for future torts: COMMUNITY TRUST BANCORP, INC. V. MUSSETTER (COA 12/14/2007)

COMMUNITY TRUST BANCORP, INC. V. MUSSETTER
TORTS:  AMBIGUOUS INDEMNITY CLAUSE FOR FUTURE TORTS 

2006-CA-002156
PUBLISHED: AFFIRMING
PANEL:  HOWARD PRESIDING; ACREE AND GUIDUGLI CONCUR
COUNTY: BOYD
DATE RENDERED: 12/14/2007

CA affirms entry of SJ dismissing third-party complaint for indemnification in this slip-and-fall case.

Community Trust owns an office building in Ashland; Mussetter was a renter. Mussetter’s employee slipped on stairs in the common area of the building, which were wet from a leaking pipe in the stairwell. She filed WC and SS claims and sued Community Trust. Community Trust filed a third-party complaint against Mussetter and his liability insurer seeking coverage and a defense. On cross-motions for SJ, the TC determined that the provision in the lease requiring Mussetter to obtain liability insurance for the building’s public areas was overly broad, vague and against public policy.

CA affirms, but for different reasons. CA holds that the "hold-harmless" or indemnity language controls the ruling. While a party may contract to indemnify itself against its own negligence, when there is doubt as to the meaning of the indemnity clause, the construction is against self-indemnification. The lease used the term "and/or," literally requiring Mussetter to indemnify Community Trust from any liability, from any cause, in any location, and regardless of whether or not the damages arise from Mussetter’s occupancy of his leased office space. Such an indemnification clause is simply too broad and would be against public policy.

John Hamlet
Sitlinger, McGlincy, Theiler & Karem


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