McCormick v. United States

• Decision Date: 16 August 1955
• Docket Number: Civ. A. No. 8581.
• Citation: 134 F. Supp. 243
• Parties: Lester J. McCORMICK, Plaintiff, v. UNITED STATES of America, Defendant (MAYTAG AIRCRAFT CORPORATION, Third Party Defendant).
• Court: U.S. District Court — Southern District of Texas

134 F. Supp. 243

Lester J. McCORMICK, Plaintiff, v. UNITED STATES of America, Defendant (MAYTAG AIRCRAFT CORPORATION, Third Party Defendant).

Civ. A. No. 8581.

United States District Court S. D. Texas, Houston Division.

August 16, 1955.

Donald H. Yarborough, Houston, Tex., for plaintiff.

Malcolm R. Wilkey, U. S. Atty., Houston, Tex., for defendant.

Baker, Botts, Andrews & Shepherd, Houston, Tex. (Alvin M. Owsley, Jr., Houston, Tex.) and Vinson, Elkins, Weems & Searls, Houston, Tex., (Thomas Weatherly), Houston, Tex., for third party defendant.

CONNALLY, District Judge.

The action is one under the Federal Tort Claims Act, 28 U.S.C.A. ?? 1346, 2674 and 2680. The plaintiff alleges that at all material times he was an employee of Maytag Aircraft Corporation, the third party defendant ("Maytag" hereafter). This employer was engaged in performance of its contract with the United States Government whereby it refueled, serviced, and maintained military aircraft at Ellington Air Force Base, in this District and Division. Plaintiff alleges that while engaged in the performance of his duties for Maytag, at a location upon a concrete apron used for the parking and servicing of such planes, which area was under the exclusive control of the military authorities of the United States, he slipped upon a quantity of oil on the concrete surface, and, in falling, sustained the injuries made the basis of the action.

The United States, as third party plaintiff, seeks to recover full indemnity or, alternatively, a contribution from plaintiff's employer, Maytag, upon either of two theories of action. First, the United States points to a provision of its contract with Maytag which it contends constitutes an indemnity agreement; and, secondly, contends that Maytag was responsible for having created the dangerous condition, and so was an active wrongdoer, while its own negligence, if any, was passive; and hence it is entitled to indemnity or contribution upon common-law principles.

It further appears from the pleadings of the parties, and apparently is without dispute, that Maytag was entitled to be, and was, a subscriber under the Employers' Liability Act of the State of Texas; that plaintiff heretofore made claim for, and received, substantial benefits from Maytag's compensation insurer. The basis of the present motion to dismiss is Maytag's contention, first, that the contractual provision in question may not be construed as imposing liability on it to indemnify the Government against the consequences of its own negligence; and, the contract aside, as a subscribing employer, it is not liable for indemnity or contribution when it would not have been directly liable to the plaintiff. In my opinion, the motion is well taken and should be sustained.

The contractual provision, which the Government contends imposes the obligation to indemnify, reads as follows:

"Section VII ?€” Liability to third persons

"(a) With respect to any Government-furnished product, equipment or facilities, the Contractor shall bear the risk of liabilities for, and shall hold the Government harmless against claims on account of, bodily injury or death of persons and damage to property of the Contractor and others arising out of or in any way connected with the operation, use, possession or handling of the product, equipment or facilities by the Contractor.

"(b) The Contractor shall procure and maintain at its own expense, Workman's Compensation and Employer's Liability Insurance, and General Liability Insurance for bodily injury and property damage to third parties, both in an amount adequate to cover the risks assumed by the Contractor under this Section. Such insurance contracts shall be subject to review and approval by the Contracting Officer.

"(c) This Section does not apply to Government-owned and/or chartered aircraft."

In my judgment, the language cannot be so construed. It is settled law that indemnity agreements are strictly construed against those who claim to be the indemnitee. And, before such a provision will be construed as affording indemnity against one's own negligence, such an intention must be clearly spelled out in unmistakable terms. Wallace v. U. S., D.C., 16 F.2d 309, affirmed 9 Cir., 18 F.2d 20; Southern Bell Tel. Co. v. Meridian, 5 Cir., 74 F.2d 983; Employers Cas. Co. v. Howard P. Foley Co., 5 Cir., 158 F.2d 363; Mostyn v. Delaware L. & W. R. Co., 9 Cir., 160 F.2d 15; Halliburton Oil Well Cementing Co. v. Paulk, 5 Cir., 180 F.2d 79. Nowhere does the contract in question spell out in clear and unmistakable terms any obligation of Maytag to hold the Government harmless from the consequences of its own negligence, at the suit of third persons.

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