full name is a mouthful we're here today because we believe the district court on a separate ruling from the one you just heard previously improperly applied the thompson versus bud case to kentucky indication contract between c m w a a corner crane's and aired imply the reasoning in bud and ignored the more recent and on point cases in kentucky that would have resulted in the opposite result at the district court level let me just fundamentally explain and confusion i have if we affirm the district court of first case that kind of cranes is liable then is there still an indemnity fight going on between the employer and kind of i don't believe that the the ruling with regard to the the first ruling is necessarily dispositive on my case my case is di manufacturing facility conner crane for drafted this it's an eighteen page standard terms and conditions of testimony is that involved in every one of the contracts on page fourteen section fourteen of this standard terms and conditions it  circuit has spoken in a published opinion on kentucky law rightly or wrongly were a panel were bound by that so how do we get around that you spoke in one thousand nine hundred nine and this issue at that time there was no kentucky cases that addressed this issue on the books now obviously if the university all the court can do is look the other six circuit states for direction are what a kentucky court might do and they looked at the b that arrived at how michigan jurisprudence in fact the is there a six circuit case that says thompson is wrongly decided not that i'm aware of that there is there a kentucky state court case that says thompson was wrongly decided there's state court cases that state that referenced thompson they consider thompson but don't hold it that says thompson was wrongly decided no if you so again under the panel rule how do how let's even assuming we agree with how do we get around the panel you're familiar with the panel yes i do we get around you get around there and  diverse reactions the consing case itself states in the ruling that it is not to be pursued not to be binding or persuasive on future courts not meant to be precedent but at the time the court stated that in the absence at this time of any other cases already we deem this to be as instructive as any other case authority we can find they used the term so negligence based on the statute in michigan six sixty nine point nine nine one  i right that thompson has been cited favorably in kentucky in enter fab as recently as two thousand and fourteen but not for this issue it's be for the proposition that you can have contractual indemnification provisions based on the facts and circumstances that maybe allow the result in this case however kentucky cases are clear and in fact says this you look to the the agreement itself and to the clear intent of the parties to be a group and that's the dispute we have with the lower court in this particular case it ignored the fact the ignore the clear intent of the party to ignore the same language was used in thompson the same language the thompson interpreted the michigan statute that actually defined so negligence kentucky doesn't have that our legislature is not take it upon themselves to do that and for good reason we're here compared  state we didn't have the same public policy issues that michigan had would they enact that their statute but i can't find any case that is that the parties can by mutual agreement agreed to sell negligence but there is no mutual agreement that the point of language is except for so that language is absolutely clear in the inner fat case had the same language what the in effect case relied on though it was too different to distinguishing factors agrees to indemnify owner for owner's acts or missions negligent or otherwise they in fact court found that because of kentucky strong reliance on a clear and unambiguous expression of a meeting of the minds that one party is going to and then the other it required that additional language also distinguishing your judgment and interest ask you a slight question there does that case if i go back and read it again say that the kentucky court is requiring that additional language or says a word you just used or does it simply refer to as a matter of fact that additional language was in there so they look at it i think that i think it is fair but i think  that the court did not say require the court stated that we are finding we're going to agree to this because of the clarifying language because it goes through the case president a techie that you have to have a clear expression of the meaning of the mines  companies here one might be a little bigger than the other i don't know about that but why on earth would we suggest that there is some disparity of the bargaining power here i'm not trying to suggest and i apologize i'm trying to point out though how this is when you look at this under the fab reasoning even in that case you had a date that the quote relied on the party that was drafting the agreement and also the type of services and the party providing those services in this case there's no indication of all the evidence that is needed of mutual see it and it you have no occasion to look to eat anything else kentucky cases look to two things and you're correct they look to the contract itself the corners but they also look to the intent of the parties and that's why the protection cases of the parties could be reflected in the plain language of the agreement but act correct if it's clear and express and an ambigu too in dem it appears to be was for you to indemnify if caught a crime along with other parties was found to be negligent but you're not required to read them to find that hard of of kentucky law that applies absent an agreement because the terms so negligence is a term of art based on this michigan statute that thompson interpreted and that's what the lower court incorrectly or a lot upon  in fact points out it's important to have this clarifying language because the negligence on its own is not the clear and express expression of the meaning of the mind or an agreement between the parties in order to make a party responsible which is from the problem most courts i must say it can't happen but it has to be that clear it expressed an unambiguous and it has to be a clear delineation that the party has taken on this responsibility to indemnify the other party for their own negligence is doing so clearly and there's no question concerning their this language absent the interpretation in the thompson case in the definition and absent any clarifying language like that the  court would reason is not that clear expression if anything at best it's ambiguous which would be of course construed against the only drafter of this agreement which would become a prince and what we believe the district court did in this case is  it appropriately applied thompson totally ignored in a fair totally ignored put delivery between look at these cases that are decided after thompson they were aware of thompson they reference to thompson and despite that they didn't  us there's no need to look outside of that to determine the meaning of the language contained in the document this indemnification provision as noted by the court is abundantly clear and and painfully unambiguous these are two very large companies of equal bargaining power and as mr fair pointed out they had a relationship they currently are still working together had a relationship since one nine hundred ninety six mr fa the fact that that it c m w entered into a contract containing this language with conference not once but twice that we know of probably multiple times more even than that and certainly they they were aware of it they were aware of its terms or where the implications of the broad question is attorneys for its attorney's fees that's all your honor but i could if you question but enter fab you're familiar with that yes yes your honor we started looking at this really pretty short opinion from the kentucky the language here ok now it goes on and it says that it's also analogous to another unpublished decision of the kentucky court of appeals and that in that case there might have been some additional language in it but is this additional language that essentially you r friend is saying was obligated to be in the indemnification agreement in order to achieve the result you're seeking does in effect say that no i think mr fair conceded it doesn't say that that it's required and miss my understanding from mr fair as argument was he stated that it referenced that and stated it was helpful but not acquirement and the language an interface you know certainly tops in still good law it's not overturned and it states clearly it's it is identical shall apply to any law bill these arising from owner so negligence that's the only i've tried to find any place in or february even says that additional language is helpful to the not in that case and i'm not aware i'm not i haven't went to that since i wrote the br back twenty plus years engage in these contracts all the time on a routine basis very aware the language is bold all capital letters how sophisticated companies clearly aware of as it is i think is really not an issue you can contract away everything your own negligence you can indemnify over your own negligence with the exception of sol negligence so there's nothing in the that's contrary to kentucky law there is not only no evidence whatsoever that this was conakry in sole negligence there is no evidence in the record that connor crane's was negligent in any way that anything it did or did not do evidence in the case is that c n w s a actually found its own employ negligent and issues with its own design of the area where the even occurred is causing your contributing to the accident  based on on that it's clear it's an ambiguous you have two parties of equal bargaining power arms length transaction the provision is supported by kentucky law a long standing case for sixteen or seventeen years that's our position that the lower court's decision should be up the reason they are held it is because of the clarifying language that does make it unambiguous and express declaration of the agreement between the parties in a fab do not rely on thompson and the definition of so negligence for a very good reason it's because it recognizes that the thompson case was relying on a statute that actually created the term of art so negligence and kentucky did not have that statute this is decided after thompson so the court had to look at the intent of the parties and the language in the agreement and the duties between the parties and in doing that it looked at the additional clarifying language after so negligence you notice it does not cite to rely upon  letter and i can't find a paragraph that starts with the words that you're using cell well we'll read it what you were i meet consuming much too much of your time and up all the players as far as the duties of the parties in the contract and whether there's any external evidence common phrases the only part of providing a service under this contract and if you look at the plain meaning of the exclusion excludes from the difficult provision of the negligence of ell consider the case carefully