holding that, under Tennessee law, an indemnification agreement covering “all loss, damage, liability, claims, demands, costs, or suits” for “property damage” and “personal injury’ included claims under CERCLA and other environmental statutes resulting from the release of hazardous substances
How later courts described this case
- holding that, under Tennessee law, an indemnification agreement covering “all loss, damage, liability, claims, demands, costs, or suits” for “property damage” and “personal injury’ included claims under CERCLA and other environmental statutes resulting from the release of hazardous substances
- declining to consider extrinsic evidence issue, because "[i]f [the contract language] is ambiguous, we must conclude that the contract does not extend to [the indemnitee's] negligence under Tennessee caselaw[.]”
- "Applying these rules to the indemnification agreement in the instant case, we find that, while there is no specific reference in the agreement to environmental liability, the language is sufficiently broad to encompass the environmental liabilities suffered here. In the contract, Yeargin agrees to `indemnify and hold Owner harmless from any and all loss, damage, liability, claims, demands, costs, or suits of any nature whatsoever asserted by employees of Contractor or any third persons ... for property damage, personal injury or death, or otherwise.'" (emphasis in original)
- “The phrase ‘to the extent’ could be interpreted to impose a percentage limitation on [the indemnitor’s] duty to indemnify. Or, ‘to the extent,’ read with [other contract language], could be construed to mean that [the indemnitor’s] duty is triggered only if it is at least partly at fault.”
Written by the judges who cited it.
The opinion
CONTIE, Circuit Judge,
concurring in part and dissenting in part. I concur in Parts I, II, III-A, and B of the majority opinion. I dissent from Part III-C for the following reasons:
The district court concluded that the language of the contract was not sufficiently broad and all inclusive to cover CERCLA liability or damages for violating federal and state environmental and safety statutes because the plain language used by the parties for the scope of indemnification restricted claims asserted by Yeargin employees to “property damage, personal injury or death, or otherwise.” The district court noted that this language is “stereotypical of the kind of language normally used to indemnify against tort claims.”
I agree with the district court. Although the phrase “or otherwise” is arguably ambiguous, the doctrine of ejusdem generis provides that where general words follow an enumeration of particular kinds or classes of persons or things, the general words refer to the same general nature or class as enumerated in the preceding specific words. See Asplundh Tree Expert Co. v. Bates, 71 F.3d 592, 598 (6th Cir.1995). In the present case, the indemnity clause contains the particular words “property damage, personal injury, or death,” which are torts, Thus, use of the general phrase, “or otherwise,” refers to other tort damages or claims for tort injuries similar to those listed before it.
The majority chose to read the indemnification agreement broadly to include CERC-LA and other environmental liability because the violation of the environmental and safety statutes caused damage to property and personal injury to the Yeargin workers and their spouses. I disagree with this analysis. The indemnity agreement does not agree to indemnify the Owner for all claims or loss resulting from or caused by property damage, personal injury, or death, but instead for claims for property damage, personal injury or death, ie. for tort claims which are different from claims for violations of environmental statutes. Although the violation of the environmental statutes allegedly created property damage and personal injury, such a violation is not a claim for “property damage, personal injury, or death.” Because none of Olin’s claims arising from statutory liability were of the same class as the tort injuries specifically listed in the indemnification agreement, I believe the district court properly concluded that Yeargin’s indemnification obligation did not extend to these types of liabilities. Beazer East, Inc. v. The Mead Corp., 34 F.3d 206 (3rd Cir.1994) (parties failed to express the intent to indemnify for CERCLA liability with requisite clarity), cert. denied, 514 U.S. 1065 , 115 S.Ct. 1696 , 131 L.Ed.2d 559 (1995). See also Elf Atochem N. Am. v. United States, 866 F.Supp. 868 (E.D.Pa.1994); Mobay Corp. v. Allied-Signal, Inc., 761 F.Supp. 345, 358 (D.N.J.1991).
Moreover, any ambiguity in the contract1 must be construed against the drafter, and indemnity agreements which purport to indemnify the indemnitee for its own fault must be strictly construed. See Purolator Products Corp. v. Allied-Signal, Inc., 772 *410 F.Supp. 124, 131 (W.D.N.Y.1991). In the present case, the indemnity agreement significantly does not agree to indemnity for all claims or loss that “arise out of' or “are caused by” personal injury, property damage, or death, which is the way the majority is construing the agreement. I believe that rather than construing the agreement strictly, the majority’s interpretation broadens the agreement to impose environmental liability without the requisite clarity. For this reason, I would AFFIRM the district court in regard to indemnity for environmental costs, fines, and penalties, and would grant summary judgment to defendant Yeargin.