Southwick v. City of Rutland

• Decision Date: 22 June 2011
• Docket Number: No. 10–128.,10–128.
• Citation: 2011 VT 53,35 A.3d 113
• Parties: David and Susan SOUTHWICK, Individually and as Parents and Natural Guardians of Addie Southwick v. CITY OF RUTLAND v. The Rutland Recreation and Parks Department (Vermont Swim Association).
• Court: Vermont Supreme Court

2011 VT 53

35 A.3d 113

David and Susan SOUTHWICK, Individually and as Parents and Natural Guardians of Addie Southwick

v.CITY OF RUTLAND

v.The Rutland Recreation and Parks Department (Vermont Swim Association).

No. 10–128.

Supreme Court of Vermont.

May 20, 2011.Motion for Reargument Denied June 22, 2011.

William F. Ellis of McNeil, Leddy & Sheahan, P.C., Burlington, for Third–Party Plaintiff–Appellee.

John D. Willey, Jr. of Boylan Associates, P.C., Springfield, for Third–Party Defendant–Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

JOHNSON, J.

¶ 1. This action stems from a written agreement between the City of Rutland and Vermont Swim Association (VSA) granting use of a City facility to VSA for its annual swim meet. A child attending the swim meet was injured when she fell from a piece of playground equipment in the park where the swim meet was held. The child's parents, plaintiffs, filed a complaint against the City, which then filed a third-party complaint against VSA asserting a claim for indemnity pursuant to the written agreement. VSA appeals the trial court's order granting the City's motion for summary judgment and entering judgment for the City in the amount of $700,000 on the indemnity claim. On appeal, VSA argues that the trial court erred because (1) the indemnity clause in the use agreement includes no express intent to indemnify the City for the City's own negligence as required by Tateosian v. State, 2007 VT 136, 183 Vt. 57, 945 A.2d 833; and (2) the circumstances surrounding the use agreement demonstrate the need for express intent language to provide indemnity for the City's own negligence. We affirm.

¶ 2. In July 2005, the City and VSA executed a written agreement that granted VSA use of Whites Pool, located in Whites Park, for VSA's annual swim meet, scheduled for August 5 and 6, 2005. The agreement between the City and VSA included an indemnification clause stating that VSA “agree[d] to defend, indemnify and hold harmless Rutland ... from all claims for bodily injury or property damage arising from or out of the presence of [VSA], including its ... guests and others present because of the event or [VSA's] activities in or about Whites Park.” The agreement also required VSA to procure liability insurance for the meet and to name the City as an additional insured entity.

¶ 3. During the swim meet, Addie Southwick fell from a piece of playground equipment in Whites Park and sustained various injuries. Plaintiffs' complaint against the City on her behalf alleged that the City had negligently installed and maintained the equipment. After the City asserted its claim against VSA for indemnity and plaintiffs added a claim against VSA, the City moved for summary judgment against VSA on two grounds: for enforcement of the indemnity clause in the agreement and for breach of contract for failing to procure insurance naming the City as an additional insured, as required by the agreement. VSA cross-moved for summary judgment against the City, arguing that the indemnification clause was inapplicable as a matter of law. The trial court granted the City summary judgment on its indemnity claim and denied VSA's cross-motion. The court also granted the City summary judgment on its breach of contract claim against VSA.^* Prior to trial, the City reached a settlement agreement with plaintiffs, and the trial court dismissed with prejudice plaintiffs' claims against the City and VSA. Based on the summary judgment ruling for the City's indemnity claim against VSA, the court entered judgment for the City against VSA in the amount of $700,000. This appeal followed.

¶ 4. We review an award of summary judgment de novo, construing all doubts and inferences in favor of the nonmoving party. Collins v. Thomas, 2007 VT 92, ¶ 6, 182 Vt. 250, 938 A.2d 1208. We must determine whether there are any genuine issues of material fact and, in their absence, whether either party deserves judgment as a matter of law. V.R.C.P. 56(c)(3); Collins, 2007 VT 92, ¶ 6, 182 Vt. 250, 938 A.2d 1208. VSA does not allege that there are genuine issues of material fact. Rather, it argues that the lower court incorrectly interpreted and applied the indemnity provision contained in the agreement between the City and VSA. We interpret the indemnification provision of this agreement as we do all contracts; our goal is to give effect to the intent of the parties as it is expressed in their writing. Hamelin v. Simpson Paper (Vt.) Co., 167 Vt. 17, 19, 702 A.2d 86, 88 (1997). When the contract language is unambiguous, we take these words to represent the parties' intent, id., and the plain meaning of this language governs its interpretation. In re West, 165 Vt. 445, 450, 685 A.2d 1099, 1103 (1996). “We assume that parties included contract provisions for a reason, and we will not embrace a construction of a contract that would render a provision meaningless.” Id. We must instead enforce the contract as it is written. Id.

¶ 5. The indemnification clause in the agreement signed by the City and VSA reads:

Permittee [VSA] hereby agrees to defend, indemnify and hold harmless Rutland, ... its officers, trustees, agents, and employees, from all claims for bodily injury or property damage arising from or out of the presence of Permittee, including its employees, agents, representatives, guests and others present because of the event or Permittee's activities in or about Whites Park, including the entrances, lobbies and exits thereof, the sidewalks, streets and approaches adjoining the property or any portion of the property used by Permittee or any of the above stated. Permittee shall be responsible for all costs of defense, including reasonable attorney's fees, and shall pay all fines or recoveries against Rutland. Permittee acknowledges that as a condition precedent to the execution of this Agreement by Rutland, Permittee agrees that it shall have no cause of action against Rutland for any damage, injury or loss to person or property, from cause [sic] whatsoever, except that which may result from the willful acts of Rutland.

The trial court held that the plain meaning of this language “unambiguously” stated that VSA agreed to indemnify the City for all claims for bodily injury made by guests of VSA and others present because of VSA's swim meet or VSA's activities in or about Whites Park. The court emphasized that because there is no ambiguity in the language of the indemnification provision or the agreement as a whole, it did not need to look to technical rules of construction to interpret the parties' indemnification provision. Rather, it determined that the agreement should be read to mean exactly what it stated. The court rejected VSA's argument that this clause indemnified the City only for VSA's negligence, concluding that there would have been no reason to include this provision at all if the parties' intention had been that VSA was to be liable for its own conduct only and not for the City's. The court also rejected VSA's reliance on Tateosian for its claim that the indemnity provision does not cover claims arising from the City's own negligence without express language to that effect, finding the agreement and the circumstances at hand very dissimilar to those in Tateosian.

¶ 6. On appeal VSA again argues that—contrary to its plain language—the indemnity clause does not cover claims that stem from the City's negligence; thus, it contends the trial court erred in granting judgment as a matter of law to the City. VSA suggests that the language “claims ... arising from or out of the presence of [VSA]” does not cover an accident that resulted because of the City's negligence. It argues that this language is ambiguous and does not express a clear intent that VSA would indemnify the City for such injuries, as required by the circumstances surrounding the agreement's formation. VSA relies on our decision in Tateosian, in which we held that a vague indemnification as to the “performance” of a contract did not indemnify the State against its own negligence without a clearer expression of the parties' intent. 2007 VT 136, ¶¶ 22–23, 183 Vt. 57, 945 A.2d 833. VSA argues that the purpose of the indemnification clause is merely to protect the City from claims by third parties caused by VSA's negligence and to protect the City from claims VSA might have against it caused by the City's willful acts.

¶ 7. VSA cannot escape the plain language of its agreement with the City. The indemnification clause allocated responsibility to VSA for any negligence claims directly arising out of VSA's event at the City's park and pool facility. The clause is expressly limited to causes of action arising out of the presence of VSA and its guests or employees and agents. It extended to any part of the park, not just the pool area, including sidewalks, streets, and approaches to the property. It barred actions by VSA against the City, unless the City committed a willful act. The intent of the parties could not be more apparent—the City was willing to allow VSA to use Whites Park as long as it was completely insulated from liability due to VSA's use. Indeed, the agreement allocated responsibility to VSA to purchase insurance to cover such losses. As the trial court found, the most basic rule of contract construction—that the plain meaning of unambiguous language prevails—determines the outcome of this case because the provision's words are clear.

¶ 8. If we were to read the contract as VSA urges, the City gains nothing by this detailed clause in the contract. VSA is already liable for its own negligence; if VSA is not indemnifying the City for the City's negligence, the clause has no purpose except to allocate the burden of buying insurance. The trial court correctly concluded that VSA's desired reading of the clause would render it a nullity.

¶ 9. Contrary to VSA's argument, Tateosian does not compel a different result from that reached...