Glaspell v. Ohio Edison Co., 86-567

CourtUnited States State Supreme Court of Ohio
Writing for the CourtHOLMES; MOYER; DOUGLAS; DOUGLAS
Citation29 Ohio St.3d 44,29 O.B.R. 393,505 N.E.2d 264
Parties, 29 O.B.R. 393 GLASPELL et al. v. OHIO EDISON COMPANY et al., Appellants; Mahoning Valley Cablevision, Inc., Appellee.
Docket NumberNo. 86-567,86-567
Decision Date25 March 1987

Page 44

29 Ohio St.3d 44
505 N.E.2d 264, 29 O.B.R. 393
GLASPELL et al.
v.
OHIO EDISON COMPANY et al., Appellants; Mahoning Valley Cablevision, Inc., Appellee.
No. 86-567.
Supreme Court of Ohio.
March 25, 1987.
Syllabus by the Court

1. While clauses limiting the liability of the drafter are ordinarily to be strictly construed, such strict construction need not be applied in the interpretation of an indemnification agreement entered into between business entities in a context of free and understanding negotiation.

Page 45

2. When the subject of liability is anticipated in an enforceable indemnity agreement, such indemnification must be provided.

Thomas E. Glaspell was injured while employed by Mahoning Valley Cablevision, Inc. ("Cablevision"), appellee herein. At the time of injury, Glaspell was assigned the task of transferring Cablevision's equipment from the top of an older utility pole onto the top of a new, taller pole. This function he accomplished by means of metal gaffs which, when attached to his boots, allowed him to ascend or descend the pole.

On the date of the events at issue, Glaspell had climbed the older pole, dismantled the equipment and reinstalled it on the new pole located next to the older one. On his way down, he caught the gaff attached to his right boot in a metal clamp designed to hold a ground rod in place. In attempting to extricate the gaff from the clamp, he set the gaff on his left boot into the pole and then placed his weight upon it. The left gaff failed to hold Glaspell's weight and he fell approximately ten to fifteen feet, thereby sustaining injuries.

Glaspell and his wife filed a personal injury and loss of consortium action against United Telephone Company ("United Telephone") and Ohio Edison Company ("Ohio Edison"). It was alleged that these defendants, appellants herein, had owned and erected the utility poles and that Glaspell's fall was caused by, among other alleged causes, either negligent maintenance or the "willful, careless and wanton conduct * * * " of appellants.

Prior to trial, United Telephone filed a third-party complaint, pursuant to Civ.R. 14, against Cablevision. Ohio Edison then cross-claimed against Cablevision. Both claims against Cablevision are predicated upon an agreement entitled "Joint Use Agreement" which was signed between United Telephone and Cablevision. This agreement purported to require Cablevision to indemnify both United Telephone and Ohio Edison.

Ultimately the trial court was presented with the issue of whether the indemnification clause in the Joint Use Agreement was applicable to the circumstances of this case. Strictly construing the agreement against the allegedly negligent parties, the trial court found that the agreement failed to express in clear and unequivocal terms that Cablevision was required to indemnify appellants for their own alleged negligence. The court of appeals affirmed, finding the contract provisions to be unclear and equivocal.

This cause is now before the court pursuant to the allowance of a motion to certify the record.

Harrington, Huxley & Smith and John C. Litty, Jr., Youngstown, for appellant Ohio Edison Co.

Page 46

Haynes & Sontich and Joseph P. Sontich, Youngstown, for appellant United Telephone Co.

Pfau, Pfau & Pfau and William E. Pfau, Jr., Youngstown, for appellee.

HOLMES, Justice.

The precise issues for determination are whether the indemnity agreement before the court is violative of public policy and, if not, whether its terms encompass the injury complained of. For the reasons expressed[505 N.E.2d 266] within, we find that the agreement is enforceable among the parties.

United Telephone granted Cablevision a license which, among other acts, permitted appellee to install equipment upon and make use of appellants' utility poles for the purpose of transmitting cable television signals to Cablevision's subscribers. The agreement also provided, in pertinent part:

"8. Indemnity to the Licensor

"(a) The Licensee [Cablevision] covenants and agrees to indemnify and save harmless the Licensor, its agents, officials, servants or workmen, and the Ohio Edison Company, its agents, officials, servants or workmen from and against any loss, cost, charges, damages and expenses which the Licensor or Ohio Edison Company may at any time or times hereafter bear, sustain, suffer, be at or be put unto for, or by reason of, or on account of (i) the installation, maintenance or use of the said equipment on or in the Licensor's or Ohio Edison Company's facilities, * * *; and the Licensee shall, upon demand and at its own sole risk and expense, defend any and all suits, actions or other legal proceedings which may be brought or instituted by third persons against the Licensor or Ohio Edison Company or their successors or assigns, on any such claim, demand or cause of action; and will pay and satisfy any judgment or decree which may be rendered against the Licensor or Ohio Edison Company, their respective successors or assigns, in any such suit, action or other legal proceedings; and will reimburse the Licensor or Ohio Edison for any and all legal expense, including court costs, incurred in connection therewith."

Agreements purporting to indemnify have received varied treatment by the law....

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