Kansas City Power & L. Co. v. United Tel. Co. of Kan., Inc.
| Decision Date | 06 June 1972 |
| Docket Number | No. 71-1175.,71-1175. |
| Citation | 458 F.2d 177 |
| Parties | KANSAS CITY POWER & LIGHT COMPANY, Plaintiff-Appellant, v. UNITED TELEPHONE COMPANY OF KANSAS, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Charles S. Fisher, Jr., Topeka, Kan. (James E. Benfer, Jerry R. Palmer, Robert D. Ochs and David L. McLane, Topeka, Kan., with him on the brief), for plaintiff-appellant.
John J. Jurcyk, Jr., Kansas City, Kan. (Willard L. Phillips and Robert E. Fabian, Kansas City, Kan., with him on the brief), for defendant-appellee.
Before LEWIS, Chief Judge, and PICKETT and DOYLE, Circuit Judges.
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.
The essential facts are summarized as follows:
Dennison, a telephone company employee, was severely injured by a falling power company pole upon which he was working. Dennison brought suit against the power company to recover damages. Upon request, the telephone company refused to defend. Thereafter the power company confessed judgment in the amount of $26,000 and costs. The parties agree that this sum was a fair and reasonable amount in settlement of Dennison's claim.
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:
* * *"
The liability of the telephone company to indemnify is to be determined in accordance with Kansas law. Gushee v. Kalen, 449 F.2d 1276 (10th Cir. 1971); Allied Mutual Casualty Corp. v. General Motors Corp., 279 F.2d 455 (10th Cir. 1960); Security Insurance Co. of New Haven v. Johnson-Bratcher Const. Co., 276 F.2d 182 (10th Cir. 1960); United States v. Acord, 209 F.2d 709 (10th Cir. 1954).
Negligence of the indemnitee as a defense and the question of whether an indemnity agreement was intended to cover the consequences of such negligence has been considered by this court in a variety of cases and the law of various jurisdictions has been applied. See Pittsburgh-Des Moines Steel Co. v. American Sur. Co. of N. Y., 365 F.2d 412, 415 (10th Cir. 1966).
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...
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