Kansas City Power & Light Company v. United Telephone Company of Kansas, Inc., 458 F.2d 177, 10th Cir. (1972)
Kansas City Power & Light Company v. United Telephone Company of Kansas, Inc., 458 F.2d 177, 10th Cir. (1972)
2d 177
Kansas City Power & Light Company brought this action seeking indemnity
under an agreement with the United Telephone Company of Kansas, Inc. for
damages which it paid to one of the telephone company's employees injured
while working on a power company transmission pole located in Kansas. The
agreement, for a valuable consideration, authorized joint use of the poles. Upon
trial to the court without a jury, the right to indemnity was denied because of
the determination that the damages were caused by the power company's own
negligence. Kansas City Power & Light Company contends that the contract
provisions disclose that the parties intended that it was entitled to indemnity in
all cases in which it was required to pay damages for injuries to telephone
company employees while working on power company poles.
It was stipulated at trial that the power company had prior to the accident
removed the pole on which Dennison was working when injured and reset it
temporarily in another location to permit certain construction in the area to
proceed. It was agreed that in the resetting process the pole was not installed to
the power company's standard depth of from five to six feet, but due to a rock
condition it was installed only to a depth of approximately two to three feet. No
notice was given of this condition. Upon consideration of the stipulation and
additional evidence relating to negligence, the trial court found that the power
company's negligence was the sole cause of Dennison's injuries. It denied
indemnity, holding that under Kansas law the contract provisions were
inadequate to protect the power company for damages resulting from its own
negligence. We agree that the evidence sustains the trial court's finding that the
proximate cause of Dennison's injuries was the power company's negligence
and that the telephone company and Dennison were free from negligence.1
The issue here is whether the provisions of the license agreement are broad
enough to require indemnity to the power company for losses occasioned by its
own negligence. The indemnifying provisions of the contract are:
6 is agreed and understood by both parties that neither party guarantees the safety
"It
of any pole, guy, guy wire, stay wire, or crossarms, and it is distinctly understood
and agreed that each party assumes for itself and its employees the obligation of
inspecting and ascertaining the present or future condition of all poles, guys, guy
wires, stay wires, and crossarms. Each party hereto agrees that it will release and
save harmless the other from any and all claims for damages to its property or
personnel caused by or arising out of the installation, use, operation, or maintenance
of poles, guys, guy wires, crossarms, or the installation, use, operation, or
maintenance of attachments not owned by it and affixed to joint-used poles. * * *"
7
276 F.2d 182 (10th Cir. 1960); United States v. Acord, 209 F.2d 709 (10th Cir.
1954).
8
The general rule is that private contracts exculpating one from the
consequences of his own acts are looked upon with disfavor by the courts and
will be enforced only when there is no vast disparity in the bargaining power
between the parties and the intention to do so is expressed in clear and
unequivocal language. United States v. Seckinger, 397 U.S. 203, 90 S.Ct. 880,
25 L.Ed.2d 224 (1970); Southern Pacific Transportation Co. v. Nielsen, 448
F.2d 121 (10th Cir. 1971); Mee v. Service Specialists, Ltd., 432 F.2d 30 (10th
Cir. 1970); Allied Hotels Company, Ltd. v. H. & J. Construction Co., Inc., 376
F.2d 1 (10th Cir. 1967); Titan Steel Corporation v. Walton, 365 F.2d 542 (10th
Cir. 1966); Sinclair Oil & Gas Company v. Brown, 333 F.2d 967 (10th Cir.
1964); Mohawk Drilling Company v. McCullough Tool Company, 271 F.2d
627 (10th Cir. 1959); Sinclair Prairie Oil Co. v. Thornley, 127 F.2d 128 (10th
Cir. 1942).2 However, the courts have not agreed upon the language necessary
to manifest such an intent. It has been held that general words are not sufficient
to bind the indemnitee unless there is specific reference to negligence. Other
courts have held that the intent can be shown without specific reference to
negligence by clear and explicit language in the agreement. Standard Ins. Co.
of N. Y. v. Ashland Oil & Refining Co., 186 F.2d 44 (10th Cir. 1950). See
Colorado Milling & Elevator Co. v. Chicago R.I.&. P.R. Co., 382 F.2d 834
(10th Cir. 1967).
10
The trial court found no reported Kansas Supreme Court decisions construing
similar contractual provisions and we have found none. Relying on a prior
decision of that court for authority, the court concluded that the indemnity
provision in this instance was insufficient to convey such an intent. Referring to
its former decision, the court stated:
indemnifying a party thereto against his own fault. This would be in better accord
with the probable intent of the parties, which is the governing factor sought by
judicial construction. It is reasonable to suppose that a party, wishing to guard
against loss resulting from his personal breach of duty, and another party, agreeing
to assume responsibility therefore, would do so in definite and express terms."'
12
We are of the opinion that the trial court did not err in applying the general rule
applicable in such cases and in concluding that the indemnification agreement
was insufficient to require indemnity to the power company for acts of its own
negligence. In Talley v. Skelly Oil Company, 199 Kan. 767, 433 P.2d 425
(1967), the Kansas Supreme Court upheld a judgment requiring indemnity on a
provision which provided: "Lessee, for himself, his heirs, personal
representatives and assigns, hereby covenants and agrees to indemnify, * * *
from any and all claims, demands and liability for any loss, damage, injury or *
* * whether due to negligence of Lessee, Lessor, or otherwise." The contract in
this case, of course, makes no specific reference to liability to indemnify if loss
is occasioned by the negligence of one of the parties, as it did in the Talley
case. At least there is doubt as to whether the parties intended that the
indemnitor should be liable to the indemnitee for a loss occasioned by its own
negligence. In such cases we ordinarily accept the trial court's judgment as to
the application of the state law. Sutton v. Anderson, Clayton & Company, 448
F.2d 293, 297 (10th Cir. 1971); Coca-Cola Bot. Co. of Steamboat Springs v.
Coca-Cola Co., 447 F.2d 635, 638 (10th Cir. 1971); Hardberger & Smylie v.
Employers Mut. L. Ins. Co. of Wis., 444 F.2d 1318 (10th Cir. 1971).
13
Affirmed.
14
15
Appellant does not seriously challenge the trial court's finding of fact as to its
negligence and does not contend that it was unsupported by sufficient evidence
or as being clearly erroneous. Indeed, it asserts that it is entitled to
indemnification even though it has been found to be negligent
2