No. 12501 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973

BOYCE R. BALLARD, Plaintiff and Appellant,

-vs

# - VOLLSTEDT KERR LUMBER COMPANY, etal., Defendants and Respondents.

Appeal from: District Court of the Fourteenth Judicial District, Honorable Nat Allen, Judge presiding. Counsel of Record: For Appellant: Larsen and Gliko, Great Falls, Montana David V. Gliko argued, and Dirk H. Larsen appeared,

Great Falls, Montana For Respondents: Alexander, Kuenning and Miller, Great Falls, Montana NeilE. Ugrin argued, Great Falls, Montana

Submitted: September 14, 1973

Decided:

## DEC18 

### 1& Filed:

## D~C 1 

# 1mMr. Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal from a summary judgment for defendants entered inthe district court of the fourteenthjudicial district, Meagher County. Plaintiff Boyce R, Ballard brought the action to
recover damages for personal injuries received as a result of alleged negligence of defendants Vollstedt Kerr Lumber Company and Yamhill Lumber Co. Defendants operated a saw millatWhite Sulphur Springs, Montana. In 1968 plaintiff entered into a contract with defendants tohaul logs to theWhite Sulphur Springs mill. In the logging contract, several paragraphs are provided protecting the logging operations including fire losses; and, paragraph 11 specifically provides for "liability insurance" with specified limitstobe carriedby the logger, and provides inpart: "It ishereby understood and agreed that the Logger shall atalltimes hold the Vollstedt Kerr Lumber Co., V.K.V. Lumber Co. and the Yamhill Lumber Co. harmless, free and clear from any claims or responsibilities regarding any employee of the Logger from Bodily Injury and/or death and damage to property. 

## ***" Paragraph 13of the contract reads: "~iens and Claims. Logger expressly a rees to 

## 7 indemnify and save Company and Company s property harmless of and from any and alldebts, dues, claims, demands, liens, charges or damages arising out of or connected with logger's operations under this contract which may be asserted by any person, association, corporation, federal government or any agency thereof.I' Plaintiff alleged: that afterunloading a load of logs he used an electric hoist to liftthe unloaded trailer on tohis truck, prior tohisreturn to the timber for another load of logs; that the hoist failed to stop causing the trailerbunk to fall from the trailer strikinghim and causing him serious, painful and permanent injuries; that the electric hoist was owned, controlled and servicedby defendants; and itwas used by plaintiff atdefendants' request. Plaintiff was an independent contractor under the provisions of the logging contract.Wenotehere, in considering the district court's summary judgment, that plaintiff's allegation of a previous malfunction of the hoist is inserted for the first time as an issue on appeal. No such allegation appears in plaintiff's complaint. Plaintiff received no workmen's compensationbecause hewas considered an "independent contractor" and not an "employee1'or
11

workman" entitled to benefits under Montana's workmen's CompensationAct. The sole issue on appeal iswhether the indemnity clause, heretofore quoted,provides indemnification to the logger as against the company? Plaintiff argues that under the provisions of the contract defendants seek to limit liability for their own negligent acts. He contends that under recent decisions of this Court defendants cannot do so and cites in support: Western Construction Co. v. ~osby'sInc., 146Mont. 313, 406 P.2d 165;Lesofski v. Ravalli Co. Elec. Coop., 151Mont. 104, 439 P.2d 370. Plaintiff, recognizing there is a diversity of opinion on the issue and his position is a minority position, reliesheavily
on the California case ofVinnell Company v. Pacific Electric Railway Co., 52C.2d 411, 340 P.2d 604, 607, 608. There, the court
was called upon to consider a contractwhich purported to indemnify
a party for his own negligent acts. The language of that contract
was similar to that of the contract involved here. The court found the language did not save the indemnitee from liability for damages resulting from its own negligence, and said: "'1n the overwhelming majority of the cases the result reached by their interpretational efforts can be condensed into the simple rule that where the parties fail to refer expressly to negligence in their contract such failure evidences the parties' intentionnot to provide for indemnity for the indemnitee's negligent act.'
"[Ilf an indemnitor such as the plaintiff is to be made responsible for the negligent acts of an indemnitee overwhose conduct it has no control, the language imposing such liability should do so expressly andunequivocally so that the contractingparty is advised in definite terms of the liability to which it is exposed. The indemnification clause in the present case,by not expressly stating that the defendantwas protected against acts of its own negligence, failed to meet this requirement.II Vinnellwas followedby three cases: Markley 

### v. Beagle, 59 Cal.Rptr. 809, 429 P.2d 129;Goldman v. Ecco-PhoenixElec. Corp., 41Cal.Rptr. 73, 396 P.2d 377; Price v. Shell Oil Company, 85 Cal.Rptr. 178, 466 P.2d 722. All three cases limit the strict constructionrule soughtby plaintiff to affirmative acts of negligence. Here,plaintiff alleged no affirmative act of negligence by defendants, therefore the cases are not applicable. Couple thiswith the language quoted heretofore from paragraph 11 of the contract, and the language is clear and explicit. Plaintiff argues that in the recent case ofWestern Construction Co. v. ~osby's,Inc., 146Mont. 313, 406 P.2d 165,

11the indemnityagreement specifically and expressly named the lessor as a party to be indemnified from liability for actions arising out of the use of the defective equipment; therefore, the lessorwas held to be validly indemnified since the indemnity agreement compliedwith the rule that

## *

## * 9~ 'the law does not favor one who endeavors to indemnify himself against his own negligence, and a provision in an instrument to do so willbe strictly construed against the party relying upon it."' Plaintiff inbasing his arguemnt on the above language ofWestern Construction Co. either misreads or misunderstands that decision. 

### A careful reading of the case shows that the quoted language is from a California case (City of Oakland v. Oakland Unified School Dist. of Alameda County, 141 Cal.App.2d 733, 297 P.2d 752) and the holding in that case was expressly rejected by this Court in Western Construction Co. Plaintiff cannot successfully compare the fact situationhere with Western Construction Co. There the indemnity clause specifically refers to an action arising out of the use of defective equipment,and the only contract between the indemnitee and in-demnitor involved the use of a singlepiece of equipment, a hoisting tower. In the instant case, we have a logging contract which involved a complex relationshipbetween the logger and the company giving rise toan indeterminable number of possible situationswhich could give rise topotential claims, demands
or liability. The very language of the indemnity clause was intended tobe broad enough to protect the company from allof

II them, as long as they involved acts connected with ~ogger's operations". The judgment of the district court is affirmed.

,Justice

Justices.