EXHIBIT C 

Case: 1:12-cv-05675 Document #: 251-3 Filed: 02/13/15 Page 1 of 4 PageID #:2954
McDonald v. Target Corp., Not Reported in N.W.2d (2013)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

	



	

 !"#$%!&"'(" " "')$'"* +!$)+'

, (,-
"'&$)+ ).+/ !-$#"!$)$0#$(!

+'(12")$)-/." '!'$#3+45

#6+776.

.8.) +
)9(669



!+1*$!#1(1+!" 9:6:

::77669+779



;<
9"9:7:6:917:

 +<=3= > .9

> 1):.
9

Steele County District Court, File No. 74–CV–11–1502.

Attorneys and Law Firms

William L. Davidson, Brian A. Wood, Lind, Jensen, Sullivan

& Peterson, P.A., Minneapolis, MN, for appellant.

Dennis Scott Ballou, Patrick M. Biren, Brownson & Ballou,

PLLP, Minneapolis, MN, for respondent.

Considered and decided by WORKE, Presiding Judge;

STONEBURNER, Judge; and SCHELLHAS, Judge.

UNPUBLISHED OPINION

WORKE, Judge.

*1 In this third-party action premised on an indemnification

agreement, appellant store seeks indemnification and

insurance coverage from respondent snack manufacturer for

appellant's negligence that purportedly resulted in an injury

to respondent's employee as the employee delivered goods

to appellant. We affirm the district court's grant of summary

judgment in favor of respondent.

FACTS

On February 22, 2010, Mark McDonald, an employee of

respondent Frito–Lay, Inc., was injured while delivering

Frito–Lay products to a store operated by appellant

Target Corporation in Owatonna. As required by appellant,

McDonald used a delivery entrance ramp to transport Frito–

Lay products, and while doing so he allegedly slipped and fell

on accumulated ice.

McDonald brought a negligence action against appellant,

which in turn initiated a third-party action against

respondent. Appellant sought defense and indemnification

from respondent in accordance with their Purchaser's Partners

Online agreement, and costs and attorney fees for defending

the action. Appellant moved to compel respondent to defend

McDonald's negligence action, and both parties moved for

summary judgment.

The district court denied appellant's motions and ordered

summary judgment for respondent. The district court strictly

construed the agreement to conclude that it did not require

respondent to indemnify appellant for appellant's own

negligence and that respondent had no duty to procure

insurance under relevant contract provisions. Because the

court concluded that respondent had no duty to either defend

or indemnify appellant, the court denied appellant's request

for costs and attorney fees. This appeal followed.

DECISION

A district court may order summary judgment “if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

either party is entitled to a judgment as a matter of law.”

Minn. R. Civ. P. 56.03. An appellate court reviews a district

court's grant of summary judgment de novo to determine

whether there is a genuine issue of material fact precluding

summary judgment and whether the district court correctly

applied the law.” Riverview Muir Doran, LLC v. JADT Dev.

Grp., 790 N.W.2d 167, 170 (Minn.2010). Summary judgment

is appropriate when “the record taken as a whole could not

lead a rational trier of fact to find for the nonmoving party.”

DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (quotation

omitted).

“[T]he goal of contract interpretation is to ascertain and

enforce the intent of the parties.” RAM Mut. Ins. Co. v. Rohde,

820 N.W.2d 1, 14 (Minn.2012) (quotation omitted). Contract

language that is unambiguous must be “given its plain and

ordinary meaning.” Metro. Airports Comm'n v. Noble, 763

Case: 1:12-cv-05675 Document #: 251-3 Filed: 02/13/15 Page 2 of 4 PageID #:2955
McDonald v. Target Corp., Not Reported in N.W.2d (2013)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

N.W.2d 639, 645 (Minn.2009). A contract is ambiguous if it

is “susceptible to more than one reasonable interpretation.”

Caldas v. Afford. Granite & Stone, Inc., 820 N.W.2d 826,

832 (Minn.2012). The interpretation of a contract, including

whether a contract is ambiguous, is a question of law that is

subject to de novo review. Id.

*2 “Agreements seeking to indemnify the indemnitee for

losses occasioned by its own negligence are not favored by

the law and are not construed in favor of indemnification

unless such intention is expressed in clear and unequivocal

terms, or unless no other meaning can be ascribed to it.”

Nat'l Hydro Sys. v. M.A. Mortenson Co., 529 N.W.2d 690,

694 (Minn.1995) (quotation omitted); Fire Ins. Exch. v.

Adamson Motors, 514 N.W.2d 807, 809 (Minn.App.1994).

Such agreements “are to be strictly construed when the

indemnitee ... seeks to be indemnified for its own negligence.

There must be an express provision in the contract to

indemnify the indemnitee for liability occasioned by its

own negligence; such an obligation will not be found by

implication.” Nat'l Hydro Sys., 529 N.W.2d at 694 (quotation

omitted). In addition, the supreme court has declined to

enforce an indemnification clause, as void against public

policy, if the clause seeks to relieve a party of the consequence

of a violation of a public duty. Yang v. Voyagaire Houseboats,

Inc., 701 N.W.2d 783, 791 (Minn.2005); Zerby v. Warren,

297 Minn. 134, 144, 210 N.W.2d 58, 64 (1973).

Here, the indemnification provision states:

[Respondent] shall defend, indemnify

and hold harmless [appellant] ...

from and against any liabilities,

losses, investigations or inquiries,

claims, suits, damages, costs

and expenses (including without

limitation, reasonable attorneys' fees

and expenses) (each a “Claim”)

arising out of or otherwise relating

to the subject matter of the Contract,

including any claim or demand of

any kind or nature, which any buyer

or user of Goods, or any other

entity or person ..., may make against

[appellant], based upon or arising out

of the manufacture, delivery, ticketing,

labeling, packaging, placement,

promotion, sale, or use of Goods,

[respondent's] performance or failure

to perform as required by the Contract,

[respondent's] acts or omissions, or

any of [respondent's] representations

or warranties contained in the

Contract ... It is the intent of the parties

hereto that all indemnity obligations

be without limit and without regard as

to whether or not [appellant] furnishes

specifications or inspects Goods.

Indemnification is required for all “claims” “arising out

of” “the subject matter of the Contract, including” a claim

“arising out of the ... delivery ... of Goods.” The agreement

also states that the parties intend “that all indemnity

obligations be without limit.” This seemingly comprehensive

language could impose upon respondent the contractual duty

to indemnify appellant for appellant's negligent failure to

remove snow or ice from its vendor delivery area.

But we must interpret the contract in a manner

consistent with Minnesota caselaw, which mandates that

we enforce contractual indemnification language covering

the indemnitee's own negligence only when the language is

included in a “clear and unequivocal” indemnity statement.

Nat'l Hydro. Sys., 529 N.W.2d at 694. The contract

language here does not mention “negligence,” nor does it

specifically require respondent to indemnify appellant for

appellant's negligent acts, particularly for negligent acts

that occurred before McDonald arrived at appellant's store

and that were unrelated to respondent's delivery of goods.

The indemnification language fails to satisfy the specificity

requirements of caselaw, and we therefore observe no error

in the district court's decision to grant summary judgment for

respondent. This result is consistent with the policy favored

by this state, which requires, even among sophisticated

contracting parties, that an indemnitor will explicitly agree to

contract language excusing an indemnitee from liability for

its own negligent acts.

*3 Appellant also argues that the district court erred

by concluding that respondent had no duty to procure

commercial general liability insurance naming appellant as an

additional insured. Again, we disagree. The language of the

parties' contract requires respondent to procure commercial

general liability insurance with minimum coverages for

“liabilities assumed by [respondent] under the [c]ontract,”

and for third-party claims brought against appellant for claims

“arising out of the [c]ontract.” As the overall purpose of

the parties' contract was for the sale of goods, McDonald's

negligence claim did not “arise” out of the contract, and

respondent had no obligation to purchase insurance on

Case: 1:12-cv-05675 Document #: 251-3 Filed: 02/13/15 Page 3 of 4 PageID #:2956
McDonald v. Target Corp., Not Reported in N.W.2d (2013)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

appellant's behalf for this occurrence. Because of our holding,

we likewise conclude that appellant cannot recover costs

and fees in defending against McDonald's claims and in

establishing that respondent is obligated to defend and

indemnify appellant.

Affirmed.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

Case: 1:12-cv-05675 Document #: 251-3 Filed: 02/13/15 Page 4 of 4 PageID #:2957