Constable v. Northglenn Llc, 09SC1063.

• Docket Nº: No. 09SC1063.
• Citation: 248 P.3d 714
• Case Date: March 21, 2011
• Court: Supreme Court of Colorado

248 P.3d 714

Carol CONSTABLE, f/k/a Carol Graham, d/b/a Flowers n' Roses, Petitioner
v.
NORTHGLENN, LLC, a Colorado limited liability company and Jaylon Inc., Respondents.

No. 09SC1063.

Supreme Court of Colorado, En Banc.

March 21, 2011.

[248 P.3d 715]

Campbell, Latiolais & Ruebel, P.C., Robyn Averbach, Jeffrey Clay Ruebel, Denver, Colorado, Attorneys for Petitioner.Hall & Evans, L.L.C., Alan Epstein, Denver, Colorado, Ray Lego & Associates, Michael L. Adams, Greenwood Village, Colorado, Attorneys for Respondent.Justice COATS delivered the Opinion of the Court.

Constable sought review of the court of appeals' judgment in Northglenn, LLC v. Constable, No. 08CA2045, 2009 WL 3863417 (Colo.App. Nov. 19, 2009) (not published pursuant to C.A.R. 35(f)), reversing the district court's order of summary judgment in her favor. The district court had concluded that an indemnity provision of the parties' lease agreement was unenforceable for reasons of public policy. The court of appeals reversed, finding that the indemnity provision was not void as against public policy because it clearly reflected the intent of the parties for Constable to indemnify Northglenn against injuries sustained as a result of Northglenn's own negligence and because it did not nullify any nondelegable duty of landowners to maintain their property in a safe condition.

Because the language of the indemnity provision clearly and unequivocally expresses the intent of the parties that Constable indemnify Northglenn for injuries or losses suffered by her customers in the shopping center's parking lot as a result of Northglenn's negligence, and because that provision does not contravene public policy by purporting to delegate a duty made nondelegable by statute, the judgment of the court of appeals is affirmed.

I.

Northglenn, LLC, the owner of a shopping center, was named as a defendant in a lawsuit filed by a woman who slipped on ice in the shopping center's parking lot. Northglenn in turn filed a third-party complaint against Carol Constable, who leased commercial space from Northglenn and operated a flower shop in the shopping center, seeking indemnity on the basis of their lease agreement. Constable moved for a determination of law pursuant to C.R.C.P. 56(h), asserting that the indemnity provision of the lease was void as against public policy both because it failed to clearly express the intent of the parties to indemnify Northglenn for its own negligence and because it purported to relieve Northglenn of nondelegable duties, over which Northglenn had exclusive control.

The five-year lease between Constable and Northglenn contained a provision indicating that Constable agreed to indemnify Northglenn from liability for bodily injury or property damage sustained by anyone in “the Premises” or elsewhere in “the Center,” as long as that person was present to visit Constable's shop or as a result of her business.¹ The term “Premises” was defined as the floor area comprising Constable's shop, while the “Center” was defined as “that certain shopping center ... currently known as The Washington Center” wherein the Premises are located. An express exception to Constable's indemnity obligation indicated, however, that she would have “no obligation to indemnify [Northglenn] against harm resulting from [Northglenn's] own gross negligence or intentional torts.”

[248 P.3d 716]

In a different section altogether, the lease agreement required Northglenn, as landlord, to keep the “Community Areas,” defined to include all parking areas and driveways, in “reasonably good order, condition and repair.” In that same provision, the lease specified, however, that Constable's “sole right and remedy” for Northglenn's failure to maintain the parking lot would be for Constable to cause the maintenance to be performed herself and to deduct the expenses of that maintenance from her rent.

The district court agreed with Constable that the lease provision was unenforceable, both because it purported to make her responsible for community areas left in the exclusive control of Northglenn and because it failed to clearly define the injuries that would trigger Constable's obligation to indemnify. As a result of this finding, it immediately granted summary judgment in Constable's favor. On direct appeal by Northglenn, the court of appeals reversed, concluding instead that the lease clearly reflected the parties' mutual intent that Constable indemnify Northglenn for injuries sustained in the community areas by her customers, whether or not Northglenn exercised exclusive control over those areas and whether or not those injuries resulted from Northglenn's own negligence. In addition the court of appeals concluded that the indemnity provision did not purport to delegate a duty made nondelegable by statute and thereby violate public policy.

We granted Constable's petition for review on the question whether the court of appeals erred in finding that the indemnity provision is not void as against public policy.

II.

An agreement to indemnify another is an agreement by one party to hold another harmless from such loss or damage as may be specified in their contract. Alzado v. Blinder, Robinson & Co., 752 P.2d 544, 553 (Colo.1988). While the public policy of this state precludes making an agreement to indemnify an actor for damages resulting from his own “intentional or willful wrongful acts,” Bohrer v. Church Mut. Ins. Co., 965 P.2d 1258, 1262 (Colo.1998); Equitex, Inc. v. Ungar, 60 P.3d 746, 750 (Colo.App.2002) (internal quotation marks omitted); see also 41 Am.Jur.2d, Indemnity § 12 (2d ed. 2005) (citing Equitex ), the same cannot be said of agreements to hold a party harmless for its own negligence. See, e.g., Pub. Serv. Co. v. United Cable Television, Inc., 829 P.2d 1280, 1283 (Colo.1992).

Quite the contrary, an agreement purporting to indemnify a party against liability for its own negligence will be enforced as written as long as it contains a clear and unequivocal expression that the parties intended that result. United States v. Seckinger, 397 U.S. 203, 211, 90 S.Ct. 880, 25 L.Ed.2d 224 (1970); Pub. Serv., 829 P.2d at 1283; Williams v. White Mountain Constr. Co., 749 P.2d 423, 426 (Colo.1988); accord Lahey v. Covington, 964 F.Supp. 1440, 1445–46 (D.Colo.1996); Zimmerman v. Baca, 346 F.Supp. 172, 178 (D.Colo.1972). Although an intent to indemnify another for its own negligence may not be a reasonable inference from less than clear contractual provisions, in a commercial setting involving sophisticated parties of generally equal bargaining power, a category in which we have in the past included lessor-lessee agreements between two businesses, see Schneiker v. Gordon, 732 P.2d 603, 610 & n. 4 (Colo.1987), courts justifiably have less concern about either contracts of adhesion or a failure of the parties to appreciate the import of unequivocal...