Ruzzi v. Butler Petroleum Co.

FLAHERTY, Justice,

dissenting.

While I agree with the majority’s treatment of the Shockey case and join in that part of the opinion, I vigorously dissent from the majority’s treatment of the Zinsser case. The majority in Zinsser holds that plain language in an indemnification agreement which saves harmless and in *23 demnifies does not operate to do what it says, i.e., it does not indemnify against the indemnitee’s negligence, because it does not contain words of “express stipulation” (referring to negligence). The authority for this somewhat astounding proposition is Perry v. Payne, 217 Pa. 252 , 66 A. 553 (1907). Because I believe that whatever vitality the Perry case may have had in 1907 has been lost to the modern world, I dissent.

In Perry , this court held that if the parties to an indemnity contract expressed a clear and unequivocal intent that the contract indemnify against the negligence of the indemnitee, that agreement would be enforced, but if that intent were not clear, i.e., if the contract did not specifically state that the indemnitee would be held harmless and indemnified for his own negligence, the court would look to the surrounding circumstances and the parties’ object in entering into the contract. The court required either an express provision indemnifying the indemnitee for its own negligence or unusual circumstances leading to that result because:

A single act of negligence on the part of the owner or his employees, over whom the contractors would have no restraint or control whatever, might create a liability which a lifetime of successful business could not repay. An interpretation ... which might give rise to such results could hardly be regarded as reasonable or as giving effect to the intention of the parties.

217 Pa. at 259 , 66 A. at 555 .

The Perry court justified this somewhat paternalistic view by stating that it was giving effect to the intent of the parties:

In construing the instrument, it is our duty to ascertain the intention of the parties, and in doing so we are not confined to the language used, but may consider the circumstances surrounding the parties and their object in making the instrument.

217 Pa. at 257 , 66 A. at 555 . As our law of contract has evolved generally, modern courts are more willing to give *24 effect to the unambiguous language of agreements than the Perry court was in 1907. In Gene and Harvey Builders v. Pa. Manufacturers’ Ass’n., 512 Pa. 420 , 517 A.2d 910 (1986), we stated that in contract interpretation:

the goal is to determine the intent of the parties, and in the absence of ambiguity, the plain meaning of the agreement will be enforced.

512 Pa. at 426 , 517 A.2d at 913 .

This point had been strongly affirmed just four years earlier in Steuart v. McChesney, 498 Pa. 45 , 444 A.2d 659 (1982), where we stated:

It is well established that the intent of the parties to a written contract is to be regarded as being embodied in the writing itself, and when the words are clear and unambiguous the intent is to be discovered only from the express language of the agreement____” [W]hen a written contract is clear and unequivocal, its meaning must be determined by its contents alone. It speaks for itself and a meaning cannot be given to it other than that expressed. Where the intention of the parties is clear, there is no need to resort to extrinsic aids or evidence.” Hence, where language is clear and unambiguous, the focus of interpretation is upon the terms of the agreement as manifestly expressed, rather than as, perhaps, silently intended.

498 Pa. at 48-49 , 444 A.2d at 661 . (Emphasis in original.) In sum, Pennsylvania’s present law of contract, exemplified by cases such as Steuart v. McChesney and Gene and Harvey Builders , clearly requires that courts give legal effect to the plain meaning of what is written in contracts.

In the present case, the indemnity provision of the agreement provided that the Zinssers would “exonerate, discharge and ... protect and save harmless and indemnify” Butler Petroleum “from any and all liability for ... injury or other casualty to persons or property ... caused ... by ... fire, explosion ... occurring through any imperfection in ... or by reason of the installation, use, operation and/or repair of the said equipment or of the premises.” The *25 personal injury which is the subject of suit in this case was caused by fire and explosion which occurred as a result of repair to the premises and/or installation of equipment. There is no ambiguity in the language of the contract — it provides that the Zinssers will indemnify Butler Petroleum for the type of accident which occurred — and, thus, the indemnity clause should be enforced. As we have stated countless times, it is not the proper function of this court to rewrite contracts for the parties or to substitute our commercial judgment for theirs. Rather, our function is to enforce the unambiguous meaning of contracts which the parties have voluntarily executed. If the contractual obligation is clear, freely entered into, and for a legal purpose, we will not intervene to rewrite the parties’ contract.

Because the contract provides that Butler Petroleum is to be indemnified for the type of accident that occurred in this case, the case should be remanded to the trial court for entry of a judgment n.o.v. in favor of Butler Petroleum and against Edmund J. Zinsser and Janice P. Zinsser.