Perkins v. Rubicon, Inc.

• Decision Date: 14 June 1990
• Docket Number: No. 89-C-2907,89-C-2907
• Citation: 563 So.2d 258
• Parties: Wiley N. PERKINS, et al. v. RUBICON, INC., et al. 563 So.2d 258
• Court: Louisiana Supreme Court

Page 258

563 So.2d 258

Wiley N. PERKINS, et al. v. RUBICON, INC., et al.

No. 89-C-2907.

563 So.2d 258

Supreme Court of Louisiana.

June 14, 1990.

Gary A. Bezet, Erich P. Rapp, Kean, Miller, Hawthorne, Darmond, McCowan & Jarman, Baton Rouge, for Rubicon, Inc., et al., Barnard & Burk Plant Services, Inc., Dennis B. Flurry, Hal Hubert, Sid Wills & Employ Nat'l Ins. Co., defendants-applicants.

Alissa J. Allison, William H. Howard, III, Marshall M. Redmon, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for Rubicon, Inc., Ron Lane, Louis McBride, defendants-respondents.

Robert R. Rainer, Baton Rouge, for Wiley M. Perkins, et al., plaintiffs-respondents.

DENNIS, Justice. ^*

The matter presented for our review is the interpretation of an indemnity agreement. Barnard & Burk Plant Services, Inc. (B & B) a maintenance service company, entered a contract with Rubicon, Inc., the owner of an industrial plant, to provide maintenance services at the plant. As part of the contract B & B agreed to "indemnify and hold [Rubicon] harmless from all claims, suits, actions, losses and damages for personal injury, including death and property damage, even though caused by the negligence of [Rubicon], arising out of [B & B's] performance of the work contemplated by this agreement."

Wiley Perkins, a B & B employee, filed suit against Rubicon and its insurer alleging that he had been injured by the negligence of Rubicon's employees while he was performing work for B & B at the plant under the maintenance contract. Rubicon called upon B & B to defend it under the indemnity agreement, and when B & B refused Rubicon filed a cross claim against B & B and moved for summary judgment ordering B & B to defend and hold Rubicon harmless from Perkins' claim.

The facts surrounding Perkins' injury are not in dispute. On July 28, 1983, Perkins was working inside a cylindrical tank at the Rubicon Plant about 110 to 120 feet from a phosgene gas reactor. The tank in which Perkins was working had been "isolated" for maintenance work and was not being used as part of the phosgene reactor operations. Rubicon employees who were engaged in work at the reactor accidentally caused the release of phosgene gas. Perkins was injured when he inhaled some of the phosgene gas that drifted over to his work site.

The trial court granted summary judgment for Rubicon ordering B & B to defend and indemnify Rubicon. The court of appeal affirmed. 552 So.2d 762 (La.App. 1st Cir.1989). We granted certiorari in this case, 556 So.2d 1272 (La.1990), because the case presents a contractual interpretation issue similar to the one presented in Rodrigue v. LeGros, 563 So.2d 248 (La.1990). Because this case presents the issue under state law, however, we have concluded that the two cases warrant separate opinions.

A contract of indemnity whereby the indemnitee is indemnified against the consequences of his own negligence is strictly construed, and such a contract will not be construed to indemnify an indemnitee against losses resulting to him through his own negligent acts unless such an intention is expressed in unequivocal terms. Soverign Ins. Co. v. Texas Pipe Line Co., 488 So.2d 982 (La.1986); Polozola v. Garlock, 343 So.2d 1000 (La.1977). The indemnity agreement here unequivocally states that B & B "shall indemnify and hold [Rubicon] harmless from all claims, suits, actions, losses and damages for personal injury, ... even though caused by the negligence of [Rubicon]." As the court of appeal concluded both in the present case and in earlier litigation interpreting the same contract, Reliance...