[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as Wildcat Drilling, L.L.C. v. Discovery Oil & Gas, L.L.C. , Slip Opinion No. 2020-Ohio-6821.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O
. 2020-O HIO -6821
W ILDCAT D RILLING , L.L.C., A PPELLEE , v . D ISCOVERY O IL AND G AS , L.L.C.,
A PPELLANT
. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it

may be cited as Wildcat Drilling, L.L.C. v. Discovery Oil & Gas, L.L.C. , Slip Opinion No. 2020-Ohio-6821.] Contracts—Indemnification—Parties have a fundamental right to contract, which includes the right to abrogate the common law—The requirements set out
in Globe Indemn. Co. v. Schmitt do not apply when the parties express a clear intent to abrogate those commo n-law requirements—Court of appeals applied the Globe Indemn. Co. requirements without considering whether the parties abrogated those requirements in their contract—Judgment
reversed and cause remanded to the trial court. (No. 2019-0222—Submitted April 8, 2020— Decided December 22, 202 0.)
A PPEAL from the Court of Appeals for Mahoning County, No. 17 MA 0018, 2018-Ohio-4015.

__________________S UPREME C OURT OF O HIO

2 F RENCH , J. {¶ 1} We accepted the discretionary appeal of appellant, Discovery Oi l and Gas, L.L.C. (“Discovery”), to c onsider whether the common-law r equirements set
out in Globe Indemn. Co. v. Schmitt , 142 Ohio St. 595, 53 N.E.2d 790 (1944), for determining whether an indemnitee may recover against an indemn itor when the
indemnitee has settled a claim without the indemnitor’s involve ment, apply even when the rights of the parties are governed by a contract that includes an indemnification provision. Becau se parties have a fundamental right to contract, which includes the right to abrogate the common law, we conclud e that the Globe
Indemn. Co. requirements do not apply when the parties express a clear inte nt to abrogate those common-law requirements. Because the Seventh Di strict Court of Appeals applied the Globe Indemn. Co. requirements in this case without considering whether the parties abrogated those requirements in their contract, we reverse its judgment. And, because the trial court also did no t consider whether the parties’ contract expresses a clear intent to abrogate the comm on law on indemnification, we remand this ma tter to the trial court for f urther proceedings.
I. Background
A. Discovery and Wildcat enter into a contract for Wildcat to drill an oil and gas well for Discovery {¶ 2} Discovery entered into a contract with appellee, Wildcat Drilli ng, L.L.C. (“Wildcat”), for Wildcat to drill an oil and gas well fo r Discovery. The contract included several provi sions relating to indemnificatio n. Generally, Wildcat was required to indemnify Discovery against any fine or penalty that resulted from pollution or contamination relating to the well. The contract specifically stated the following: 17. Responsibility for Loss or Damage.
* * *January Term, 2020

3 17.9. Pollution and Contamination – Notwithstanding anything in the Contract to the contrary, excepting only Paragr aph 13, it is understood and agreed by and between [Wildcat] and [Discovery] that the responsibility for pollution and contamina tion
shall be as follows:
17.9.1 [Wildcat] Liability – [Wildcat] shall assume full responsibility for and shall defend, indemnify, and hold [Disco very] and its joint owners harmless from and against any loss, damage , expense, claim, fine and penalt y, demand, or liability for poll ution or contamination, including cont rol and removal thereof, that ordinates on or above the surface of the land or water from spi lls, leaks, or discharges of motor fuels, lubricants, and oils; pipe dope; paints and solvents; ballast, bilge, sludge, and garbage; and o ther liquids or solids in possession and control of [Wildcat]. Thes e obligations are assumed without regard to the negligence of any party or parties.
* * * 17.11 Indemnity Obligations – Except as otherwise expressly limited in this Contract, it is the intent of the par ties hereto that all indemnity obligations and/or liabilities assumed by su ch parties under the terms of thi s Contract will be without limit and without regard to the cause or cau ses thereof (including pre-ex isting conditions), strict liability, or the negligence of any party o r parties, whether such negligence be sole, joint or concurrent, active or passive * * *.

(Boldface and underlining sic.) After the parties had entered into the contract, Wildcat began drilling an oil and gas well for Discovery in lat e 2014.S UPREME C OURT OF O HIO

4 B. The Ohio Department of Natural Resources discovers Wildcat’s illegal use of
brine water {¶ 3} In early 2015, an inspector with the Ohio Department of Natural Resources (“ODNR”) determined tha t Wildcat had violated Ohio la w by improperly using brine water in its drilling operations. ODNR notified Discovery of the violation. Several months later, Discovery met with ODN R and agreed to pay a $50,000 fine relating to Wildcat’s use of brine water in its drilling operations. Discovery then refused to pay any portion of the invoice owed t o Wildcat until Wildcat agreed to indemnify it for the ODNR fine.
C. The parties sue each other for breach of contract {¶ 4} Wildcat sued Discovery for breac h of contract for Discovery’s f ailure to timely pay the invoice for Wildcat’s completed work. Discov ery answered Wildcat’s complaint and asserted counterclaims for breach of co ntract and civil liability for criminal conduct, based on Wildcat’s illegal use of brine water and its refusal to indemnify Disc overy for the ODNR fine. {¶ 5} The parties filed competing motions for summary judgment. Discovery argued that Wildcat was required under the terms of t he contract to indemnify Discovery for the ODNR fine it had incurred due to Wi ldcat’s illegal use of brine water in its drilling operations. Wildcat argued that Discovery’s
indemnification cla im failed under this court’s decision in Globe Indemn. Co. , 142 Ohio St. 595, 53 N.E.2d 790, and its progeny, because Discovery had failed to provide Wildcat with notice of the ODNR claim prior to Discover y’s payment of the fine to ODNR. Wildcat complained that it was deprived of t he opportunity to defend against the purported vio lation. Based on that lack of notice, Wildcat
maintained that it was under no dut y to defend, indemnify, or h old Discovery
harmless from the ODNR claim. {¶ 6} Discovery countered that the plain language of the contract did not require it to give Wildcat noti ce of the ODNR claim and instead obligated WildcatJanuary Term, 2020

5 to indemnify Discovery for any fine or penalty relating to poll ution or contamination. Discovery further argued that this court’s hold ing in Globe Indemn.
Co. did not apply because that case dealt with principles of common -law indemnity, not contractual indemnity. And Di scovery maintained that even if Globe Indemn.
Co. did apply, Wildcat knew of the ODNR claim prior to Discovery’s payment of
the fine. {¶ 7} The trial court granted both parties’ motions for summary judgm ent, finding that each party had bre ached the contract. According t o the trial court, Discovery had breached the contract by failing to timely pay Wi ldcat’s invoice. And Wildcat had breached the contract by causing Discovery to p ay a fine to ODNR as a result of Wildcat’s drilling practices. The trial co urt determined that Wildcat had known of the compliance issues with ODNR and that i t could not claim that it did not have an opportunity to challenge the allegation s prior to Discovery’s payment of the fine. The trial court then ordered Discovery to pay Wildcat the amount of the invoice, less the amount of the fine and Discover y’s expenses, and to pay prejudgment interest pursuant to the contract. The tria l court’s judgment entry did not address whether th e parties’ contract expressed a n intent to abrogate
the common-law Globe Indemn. Co. requirements. It simply concluded that Discovery was entitle d to indemnification.
D. The parties appeal to the Seventh District Court of Appeals {¶ 8} Both Discovery and Wildcat appealed the trial court’s judgment to the Seventh District Court of Appeal s. The appellate court reverse d the trial court’s judgment as to the indemnification issue, holding that Wildcat is not required to indemnify Discovery because Discovery did not provide Wildcat w ith the notice required to be entitled to inde mnification. 2018-Ohio-4015, 12 1 N.E.3d 65, ¶ 69-
71. {¶ 9} Applying Globe Indemn. Co. , the Seventh District determined that Discovery could be entitled to indemnification only if (1) it h ad given proper andS UPREME C OURT OF O HIO

6 timely notice to Wildcat of the ODNR claim, (2) it was legally liable to respond to the settled claim, and (3) the settlement was fair and reasonab le. Id. at ¶ 61, 69. Because Discovery had not notified Wildcat of the ODNR claim or of its intent to settle the claim, the court of appeals concluded that Discovery was not entitled to
indemnification. Id. at ¶ 69.
E. Discovery appeals to the Supreme Court of Ohio {¶ 10} Discovery appealed to this court, raising four propositions of law. We accepted jurisdiction over Discovery’s second proposition of law, which states: “Contractually-negotiated indemn ification clauses are not subje ct to the common
law Globe indemnification requirements.” See 155 Ohio St.3d 1463, 2019-Ohio1817, 122 N.E.3d 1285.
II. Analysis {¶ 11} The issue before this court is w hether the requirements set out in
Globe Indemn. Co. , 142 Ohio St. 595, 53 N.E.2d 790, for determining whether an indemnitee may recover against an indemnitor when the indemnite e has settled a
claim without the indemnitor’s invol vement, apply when the part ies’ rights are governed by a contract that in cludes an indemn ification provisi on. A . Globe Indemn. Co. and its progeny set out Ohio’s common law on indemnification {¶ 12} In Globe Indemn. Co. , this court, “[a]s a concluding observation,” determined that the right to indemnification against an actual wrongdoer exists when the individual proceeded against in the first instance set tles the loss voluntarily or has a judgment recovered against him. Id . at 604. The court expressed that an indemnitee’s voluntary payment does not negat e the right to
indemnification. Id. Rather, in order to be entitled to indemnification after a voluntary settlement, the indemnitee must prove that (1) proper and timely notice was provided to the indemnitor, (2) the indemnitee was legally liable to respond,January Term, 2020

7 and (3) the settlement was fair and reasonable. Id. , citing Tugboat Indian Co. v.
A/S Ivarans Rederi , 334 Pa. 15, 21, 5 A.2d 153 (1939). {¶ 13} This court has follo wed and applied Globe Indemn. Co. in other cases relating to indemnificati on, and it has expressly applied the Globe Indemn.
Co. requirements to determine whether a party has a right to indemn ification. See
New York Cent. R. Co. v. Linamen , 171 Ohio St. 87, 88, 167 N.E.2d 778 (1960) (plaintiff did not establish a ri ght to recover because plainti ff did not allege or prove that notice was provided to the defendant prior to settlement o r prove that the settlement was fair and reasonable); Aetna Cas. & Sur. Co. v. Hensgen , 22 Ohio St.2d 83, 93, 258 N.E.2d 237 (1970) ( Globe Indemn. Co. does not apply when the right to indemnification is not at issue); see also Reynolds v. Physicians Ins. Co. of
Ohio , 68 Ohio St.3d 14, 16, 623 N.E.2d 30 (1993). Therefore, this court’s “concluding observations” in Globe Indemn. Co. at 604, and the three indemnification requirements set out in that case are not dicta ; they are the
common-law indemnificati on requirements in Ohio.
B

. Parties may contract to abrogate the common-law Globe Indemn. Co. requirements {¶ 14} We have recognized that parties “have a fundamental right to contract freely with the expectation that the terms of the cont ract will be enforced.” Nottingdale Homeowners’ Assn., Inc. v. Darby , 33 Ohio St.3d 32, 36, 514 N.E.2d 702 (1987); see also Wilborn v. Bank One Corp ., 121 Ohio St.3d 546, 2009-Ohio306, 906 N.E.2d 396, ¶ 8; Blount v. Smith , 12 Ohio St.2d 41, 47, 231 N.E.2d 301 (1967). To that end, parties to a contract may include contrac tual terms that abrogate the common law. Paul Cheatham I.R.A. v. Huntington Natl. Bank , 157 Ohio St.3d 358, 2019-Ohio-3342, 137 N.E.3d 45, ¶ 30. “[B]ut th e intent to do so must be clearly indicated.” Id. This principle applies to contractual indemnification agreements. As we have recognized, the “nature of an indemnity relationship is determined by th e intent of the parties as expr essed by the languageS UPREME C OURT OF O HIO

8 used” in the agreement. Worth v. Aetna Cas. & Sur. Co ., 32 Ohio St.3d 238, 240, 513 N.E.2d 253 (1987). We cannot ascer tain the parties’ intent without looking at the words that they used to express their intent. Kelly v. Med. Life. Ins. Co ., 31 Ohio St.3d 130, 132, 509 N.E.2d 411 (1987) (“The intent of the parties to a contract is presumed to reside in the language they chose to employ in t he agreement”). {¶ 15} The contract here does not say unequivocally that Wildcat and Discovery intended to abrogate Ohio’s common-law indemnificatio n requirements. Nor does it say that Discovery can voluntarily settle a claim w ithout first giving Wildcat notice of the claim or that Discovery can settle a clai m for any amount it chooses, even if that amount is unreasonable. To be sure, no t alismanic or magical language is required in order to abrogate the common law throug h a contract. Rather, the focus is on the par ties’ intent, as expressed by th e language the parties
chose to use in their contract. Sunoco, Inc. (R & M) v. Toledo Edison Co. , 129 Ohio St.3d 397, 2011-Ohio-2720, 953 N.E.2d 285, ¶ 37 (the court’s “ role is to give effect to the intent of the parties,” w hich is presumed to be reflecte d in the contract’s language); In re All Kelley & Ferraro Asbestos Case s, 104 Ohio St.3d 605, 2004- Ohio-7104, 821 N.E.2d 159, ¶ 29; (“In construing the terms of a written contract, the primary objective is to give effect to the intent of the pa rties, which we presume rests in the language that they have chosen to employ”); Worth at 240 (the nature of the indemnity relationship de pends on the intent of the part ies, as expressed by the language in the contract). If the language used in the par ties’ contract evinces a clear intent to abrogate the common-law Globe Indemn. Co. requirements, the contract should be applied as wr itten and the indemnitor must i ndemnify the indemnitee under the terms of the agreement. See Allen v. Std. Oil Co ., 2 Ohio St.3d 122, 443 N.E.2d 497 (1982), paragra ph one of the syllabus

. {¶ 16} The second dissenting opinion suggests that we are concluding t hat the common law can supplant the negotiated terms in a contract or that we are requiring that the contract contain an explicit rejection of the common law in orderJanuary Term, 2020

9 for the parties to abrogate the common law on indemnification. We are doing neither of those things. The common law on indemnification can not supplant clear terms contained in a contract. Our primary objective in constr uing a contract is to give effect to the parties’ intent. Kelley & Ferraro Asbestos Case s, 104 Ohio St.3d 605, 2004-Ohio-7104, 821 N.E.2d 159, at ¶ 29. If the parties i ntend to abrogate the common law on indemnification, we must honor that intent. But while, here, the dissent assumes an intent in the contract to derogate from the common law regardless of whether the contract reflects that intent, instea d a court must look to the contractual language to ascer tain and give effect to the pa rties’ intent. And as we have already said, no talismanic or magical language is requ ired to express a clear intent to abrog ate the common law. {¶ 17} Here, no court has analyzed the parties’ contract to determine if it evinces a clear intent to abrogate the common-law Globe Indemn. Co. requirements. The trial court’s judgment entry contains no ana lysis on that issue. The trial court simply concluded that Discovery is entitled to indemnification. The court of appeals c oncluded that the Globe Indemn. Co. requirements apply regardless of the terms of the parties’ contract. We decline t o conduct that analysis in the first instance and limit our review to the proposition o f law that we accepted. We remand the matter to the trial court for further proceedings so that it may consider whether the parties intended to abrogate the common-la w requirements on
indemnification.
III. Conclusion {¶ 18} Because the Seventh District Court of Appeals applied the Globe
Indemn. Co. requirements here without consid ering whether the parties abro gated those requirements in their cont ract, we reverse its judgment. Because no court has interpreted the parties’ contract to determine if it expresses a clear intent to abrogate
the common-law Globe Indemn. Co. requirements, we remand this matter to the trial court for further proceedings.S UPREME C OURT OF O HIO

10 Judgment reversed
and cause remanded.
O’C ONNOR , C.J., and S TEWART , J., concur.
K ENNEDY , J., concurs in judgment only i n part and dissents in part, wi th an opinion.
F ISCHER , J., dissents, with an opinion joined by D E W INE , J.
D ONNELLY , J., dissents, with an opinion.

_________________ K

ENNEDY , J., concurring in judgment onl y in part and dissenting in part. {¶ 19} Because this court’s tort-liability case, Globe Indemn. Co. v. Schmitt , 142 Ohio St. 595, 53 N.E.2d 790 (1944), does not control the di sposition of this contract case, I concur in the court’s judgment reversing the j udgment of the Seventh District Court of Appeals. However, there are still ge nuine issues of material fact precluding a grant of summary judgment in this ca se, and I would
remand this matter to the trial court to resolve those issues i n the first instance. I therefore concur in judgment only in part and dissent in part.
Globe Indemn. Co. {¶ 20} Our decision in Globe Indemn. Co. involved the right to indemnification between joint t ortfeasors. In that case, John Shillito Company (“Shillito”) contracted with Alois Schmitt to clean beneath iro n grates in the sidewalk adjacent to Shillito’s department store. Id . at 595-596. While cleaning, Schmitt removed an iron grate from the sidewalk, leaving the op ening “unprotected and unguarded,” and a pedestrian fell through the opening, suff ering serious injury.
Id . at 596. Shillito’s insurer, Globe Indemnity Company, gave Sc hmitt notice of its intent to settle the matter, but Schmitt did not respond. Id . at 596-597. Globe Indemnity entered a settlement with the pedestrian and, on the basis that it hadJanuary Term, 2020

11 become subrogated to any right of Shillito’s, sought indemnific ation from Schmitt.
Id . at 597. {¶ 21} This court noted the rule that joint tortfeasors may not seek indemnification or contribution from each other, but it explain ed that this rule applies when the joint tortfeas ors had been actively negligent. Id . at 599-600. We determined that Schmitt had been actively negligent and was pri marily liable, while Shillito had been passively neglig ent and was secondarily liabl e as the landowner.
Id . at 603. This court concluded tha t a right to indemnification existed:

While, then, the occupier of premises, who maintains a covered aperture in the sidewalk adjacent to his property, and another, who removes the cover a nd thereafter leaves the openin g unprotected and unguarded, are equally liable to a pedestrian, who without fault steps into the opening and is injured, yet, as be tween the two first designated, the former is entitled to rely on the latter to act in a careful and prudent manner, and in the event the forme r pays damages to the injured pers on has the right to indemnity.

Id. at 603. {¶ 22} However, this court did not stop there but also offered “a conc luding observation,” stating that “the fact of voluntary payment does not negative the right to indemnity. However, the one seeking indemnity, after making voluntary settlement, must prove that he has given proper and timely noti ce to the one from whom it is sought, that he was legally liable to respond and th at the settlement
effected was fair and reasonable.” Globe Indemn. Co. , 142 Ohio St. at 604, 53
N.E.2d 790. {¶ 23} This concluding statement is dict a. The requirements for prese rving a right to indemnification were not at issue, and the only ques tion was whetherS UPREME C OURT OF O HIO

12 indemnification was proper in the first place. Moreover, Globe Indemn

. Co. is distinguishable from this case on its facts, because it concern ed joint tortfeasors
while the case before us involves parties to an express indemni fication clause in a

contract. Globe Indemn

. Co. therefore does not control our decision today. And because the parties do not present some other basis in contract law requiring us to
determine that both advance notice of a settlement and that the settlement was reasonable are prerequisites to recovery under an express indem nification clause, we need not decide that ques tion on our own initiative in the f irst instance. Summary Judgment {¶ 24} The fact that Globe Indemn. Co. is inapplicable here does not end the analysis. This case comes to us following the Seventh Dist rict’s reversal of the trial court’s grant of summary j udgment, and our review is de n ovo, Beverage Holdings, L.L.C. v. 5701 Lombardo, L.L.C. , 159 Ohio St.3d 194, 2019-Ohio-4716, 150 N.E.3d 28, ¶ 11. Summary judgment may be granted when “the re is no genuine issue as to any material fact and * * * the moving party is ent itled to judgment as a matter of law.” Civ.R. 56(C). In reviewing a motion for summar y judgment, we
construe the evidence in favor of the nonmoving party and summa ry judgment may be rendered when reasonable minds can come only to a conclusion that is adverse to the nonmoving party. Transtar Elec., Inc. v. A.E.M. Elec. Servs. Corp. , 140 Ohio St.3d 193, 2014-Ohio-3095, 16 N.E.3d 645, ¶ 8. {¶ 25} The indemnification clause in this case provides that appellee, Wildcat Drilling, L.L.C.,

shall assume full responsibility for and shall defend, indemnif y, and hold [appellant, Discovery Oil and Gas, L.L.C.,] and its joint owners harmless from and against any loss, damage, expense, claim, fin e and penalty, demand, or liabilit y for pollution or contaminatio n, including control and removal th ereof, that ordinates on or abo ve theJanuary Term, 2020

13 surface of the land or water from spills, leaks, or discharges of * * * liquids or solids in possession and control of [Wildcat Drillin g]. These obligations are assumed without regard to the negligence of any party or parties.

{¶ 26} The contractual language does not make Wildcat Drilling strictl y liable for every loss that Discovery Oil and Gas suffers. Rath er, Wildcat Drilling is responsible for loss from cont amination or pollution caused by the discharge of a liquid under Wildcat Drilling’s possession and control. Disc overy Oil and Gas therefore must establish that Wildcat Drilling is responsible f or the pollution or contamination that caused loss before it may recover under the contract’s
indemnification clause. See, e.g. , One Beacon Ins., L.L.C. v. M & M Pizza, Inc. , 160 N.H. 638, 644, 8 A.3d 18 (2010) (when t he indemnitor is not given notice and the opportunity to defend, the i ndemnitee must demonstrate actu al liability); Valloric v. Dravo Corp. , 178 W.Va. 14, 19, 357 S.E.2d 207 (1987) (same); id . at fn. 8 (citing cases); Sompo Japan Ins. Co. of Am. v. Norfolk S. Ry. Co. , 762 F.3d 165, 188 (2d Cir.2014) (“a claim for contractual indemnificatio n only accrues once the indemnitee has suffered a loss”). If Discovery Oil and Gas proved that Wildcat Drilling was responsible for the violation, Wildcat Drilling wo uld have to indemnify Discovery Oil and Gas regardless of whether notice an d an opportunity defend had been given. {¶ 27} Wildcat Drilling presented evidence to establish a genuine issu e of material fact regarding whether it was responsible for the fine imposed by ODNR. In the notice of the violation, ODNR’s inspector, Fred Romeo, s tated that “while the drilling rig was circulating the casing bottoms up with the mud pump using fluid from the drilling pits to condition the hole for cementing the surface casing,” he discovered excessive salinity in “ the fluid circulating through the casing and from the borehole.” This violated Ohio law, he explained, because o nly air, fresh water,S UPREME C OURT OF O HIO

14 or “freshwater based mud” may be used when drilling through an underground source of drinking water. Although the notice of the violation does not expressly state that Wildcat Drilling caused the contamination, a reasona ble inference from
the notice is that Romeo determined that the contamination had occurred during drilling and that Wildcat Drilling was responsible for the cont amination. {¶ 28} In response, Wildcat Drilling presented the deposition testimon y of John Howell, who supervised the drilling project on the day tha t the alleged
violation was discovered. He ac knowledged that it is illegal t o use brine while drilling a surface hole. He also admitted that the drilling cr ew had put saltwater into the drilling system’s mud pump to keep the drilling equipm ent from freezing up in the cold weather. However, Howell stated that his crew h ad not put brine into the surface hole while drilling it. Instead, they had circulat ed saltwater only through the pump and into the “rathole” (w hich is a separate, shallower hole containing the apparatus used to turn the drill bit and which is coated with a n impervious material to prevent contamination of the water table). The brine then p assed through a ditch and into a retention pit, which had a liner to protect groundwa ter. Howell explained that the only way that the ONDR inspector could have taken a sa mple that contained saltwater was if he took the samp le from the ditch—Howell dispu ted that the sample had come from the main hole. He believed that he had se en the inspector take a sample from the pit a nd he testified that it was not pos sible for the inspector to have taken a sample from t he main hole during the drilling s tage. {¶ 29} Howell testified that during the time that the inspector said t hat he had taken the sample, the cemen ter had already “hooked up to th e main hole.” Howell pointed out that if the inspector had in fact tested the surface casing and found brine in the main hole, tha t sample would have been taken after Wildcat Drilling had moved off the well and a separate crew of cementer s hired by Discovery Oil and Gas had control of the well. Similarly, Rich ard Liddle, a petroleum engineer and the president of Wildcat Drilling, testi fied that the cementerJanuary Term, 2020

15 could have pumped saltwater down the main hole. And the notice of the violation itself indicated that saltwater was being pumped into the main hole to condition it for cementing. {¶ 30} There is a genuine factual dispute regarding whether Wildcat Drilling used saltwater in the main hole while drilling through an underground source of drinking water and was t herefore responsible for the contamination. For this reason, summary judgment on Di scovery Oil and Gas’s claim for
indemnification i s inappropriate. {¶ 31} I therefore concur in the court’ s judgment to reverse the court of appeals’ judgment in favor of Wildcat Drilling, but I would rem and this matter to
the trial court to resolve the questions of fact that remain in this case.

_________________ F ISCHER , J., dissenting. {¶ 32} It has been a longstanding principle of Ohio law that parties h ave a fundamental right to contract fr eely with the expectation that the terms of their contract will be enforced. But today, the lead opinion conclud es that the common law may supplant the terms in a negotiated contract entered int o between two sophisticated parties when that contract does not explicitly derogate from the common law. Because I believe that the parties, who entered in to a contract with an express indemnification provi sion, clearly indicated that th ey wanted to be governed by the negotiated terms of their contract and not the common-law requirements set forth in Globe Indemn. Co. v. Schmitt , 142 Ohio St. 595, 53 N.E.2d 790 (1944), I must respectfully dissent.

The requirements of Globe Indemn. Co. should not apply when there is an express indemnificat ion provision in a con tract that governs th e rights of the parties {¶ 33} “Indemnity arises from contract, either express or implied, and it is the right of a person, who has been compelled to pay what anoth er should haveS UPREME C OURT OF O HIO

16 paid, to require compl ete reimbursement.” Worth v. Aetna Cas. & Sur. Co ., 32 Ohio St.3d 238, 240, 513 N.E.2d 253 (1987); see also Reynolds v. Physicians Ins. Co. of Ohio , 68 Ohio St.3d 14, 16, 623 N.E.2d 30 (1993). In cases of impl ied indemnity, otherwise known as co mmon-law indemnity, the rights of the parties arise on account of the negligent or otherwise tortious act of another. Maryland
Cas. Co. v. Frederick Co ., 142 Ohio St. 605, 607, 53 N.E.2d 795 (1944). “This right of indemnity is based upon the principle that everyone is responsible for his [or her] own negligence, and if another person has been compell ed by the judgment of a court having jurisdiction to pay the damages which ought t o have been paid by the wrongdoer[, then] they may be recovered from him [or her].” Id

. {¶ 34} Contractual indemnification arises from a contract between the parties in which the indemnitor promises to indemnify the indem nitee against liability for circumstances stated in the contract. Worth at 240. And the nature of the indemnity relationship is determined by the intent of the p arties, as expressed by the language used in the contract. Id . When the indemnitor expressly agrees to indemnify an indemnitee, the indemnitor is obligated to indemni fy the indemnitee
under the terms of the contract. Allen v. Std. Oil Co ., 2 Ohio St.3d 122, 443 N.E.2d 497 (1982), paragraph one of the syllabus. That is because, in Ohio, parties “have a fundamental right to contract freely with the expectation tha t the terms of the
contract will be enforced.” Nottingdale Homeowners’ Assn., Inc. v. Darby , 33 Ohio St.3d 32, 36, 514 N.E.2d 702 (1987); see also Wilborn v. Bank One Corp ., 121 Ohio St.3d 546, 2009-Ohio-306, 906 N.E.2d 396, ¶ 8; Blount v. Smith , 12 Ohio St.2d 41, 47, 231 N.E.2d 301 (1967). Thus, when an indemnitor expressly agrees to indemnify an indemnitee, barring unusual circumstances or am biguity in the contract, the indemnitor is obligated to indemnify the indemnit ee under the terms of the agreement. Allen at paragraph one of the syllabus. {¶ 35} Thus, because appellee, Wildcat Drilling, L.L.C. (“Wildcat”), a nd appellant, Discovery Oil and Gas, L.L.C. (“Discovery”), entered into a contractJanuary Term, 2020

17 with an express indemnificati on provision, the terms of that co ntract should govern the rights of the parties. The lead opinion, however, determin es that an indemnification provision include d in the contract does not pre clude implied
indemnification unless the contra ct explicitly states otherwise

. {¶ 36} The lead opinion has two problem s in its analysis in this case. The
first is that before Globe Indemn. Co. could apply, the court would first need to determine that the underlying issue itself is governed by princ iples of implied indemnification. Neither Wildcat nor Discovery raised any issu e relating to implied indemnification—Discovery’s entire claim is based on contractua l indemnification, by which fault does not come int o play by the express terms of the contract. Thus, the lead opinion essentially skips a step by saying that Globe Indemn. Co. may apply under the terms of the contract, when neither party raise d a claim of implied
indemnification. {¶ 37} The second problem in concluding that common-law indemnification can supplement the terms of contractual indemni fication is that such a conclusion will lead to chaos in interpreting contracts. If the parties to a contract negotiated for indemnification through terms less than what is required for common-law indemnification, then those terms of the contract, u nder the lead opinion’s interpretation, would be meaningless. Parties who ag reed to contractual indemnification provisions would always be bound by the common law unless they expressly stated otherwise. {¶ 38} But in actuality, if the common law provides greater protection s and the parties contract to lesser protections, what the parties ar e doing is indicating a
clear intent to derogate from the common law. See Paul Cheatham I.R.A. v. Huntington Natl. Bank , 157 Ohio St.3d 358, 2019-Ohio-3342, 137 N.E.3d 45, ¶ 30 (parties to a contract may incl ude terms in derogation of commo n law, but the intent to do so must be clearly indicated); see also Alyeska Pipeline Serv. Co. v.
Wilderness Soc ., 421 U.S. 240, 256, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975) (“ab sentS UPREME C OURT OF O HIO

18 statute or enforceable contract, litigants pay their own attorn eys’ fees”). This is why an express indemnification provision in a contract must gov ern the rights of the parties, unless that provision is ambiguous or otherwise un lawful. This is the only way that parties can fully understand and protect their ri ghts under the contract. But the lead opinion e ffectively increases the parti es’ burdens from providing a clear intent to abrogate the common law to providing an unequivocal

statement . That is, without an unequivocal statement to the contrary, n otice will be required regardless of whether th e contract includes that term or not. The lead opinion’s recitation that the pa rties are free to negotiate the terms of a contract and that no talismanic language is required is contrary to its conc lusion. {¶ 39} The lead opinion’s analysis can only be interpreted as reading a notice provision under Globe Indemn. Co. into an otherwise complete contract that does not explicitly and unequivocal ly reject the common law. I think the court should exercise greater caution before doing so. The parties t o this contract included a merger clause stating that the contract is the compl ete and final agreement between the parties. As the lead opinion acknowledge s, a notice provision was not a part of that agreement. Importantly, notic e provisions are conditions precedent and they are not to be implied lightly. See M3 Producing, Inc. v. Tuggle , 2017-Ohio-9123, 91 N.E.3d 805, ¶ 14 (5th Dist.) (a condition precedent is a condition that must be performed before the obligations in the contract become effective). Accordingly, when th e parties have not agreed to s uch a condition, I think that, however just it may be, we should be more reluctant to supply one. {¶ 40} Therefore, I would conclude that the requirements set forth in Globe
Indemn. Co. do not apply when the parties’ rights are governed by an expres s indemnification provision in a c ontract, as the inclusion of su ch a provision is a clear intent to derogate from t he common law. I would reverse the appellate court’s judgment on that issue.January Term, 2020

19 Remand to the trial court is unn ecessary because no other issue s remain to
be resolved in this case {¶ 41} The lead opinion remands the caus e to the trial court to review the language of the contract, because the trial court’s judgment en try contains no analysis on the notice issue. But the trial court clearly cons idered the terms of the
contract and determined that Wildcat was “in breach of the cont ract for causing Discovery to pay a fine to the State of Ohio as a result of its drilling activities on the well,” and the parties did not raise any issue whether the terms of the contract are ambiguous or contrary to law, or otherwise appeal the trial court’s interpretation of the contract. Thus, any further review of the contract is b eyond the scope of the appeal.
Conclusion {¶ 42} Unless fraud or other unlawfulness exists, courts are powerless to save a competent person from the effects of his or her own volu ntary agreement. Hope Academy Broadway Campus v. White Hat Mgt., L.L.C. , 145 Ohio St.3d 29, 2015-Ohio-3716, 46 N.E.3d 665, ¶ 37. The right to contract fre ely with the expectation that the contract s hall endure according to its ter ms is as fundamental to our society as the right to speak without restraint. Nottingdale Homeowners’ Assn., Inc. , 33 Ohio St.3d at 36, 514 N.E.2d 702. It is not the responsib ility or
function of this court to rewr ite the parties’ contract in orde r to provide for a more equitable result. Hope Academy Broadway Campus at ¶ 37. Nor is it the responsibility of the court to revive waived arguments on appea l. Because the lead opinion creates a heightened standa rd of review for contracts w ith indemnification provisions by concluding that the Globe Indemn. Co. requirements may apply when the contract does not expressly and unequivocally state otherwi se, and revives arguments that were fully adj udicated and not appealed, I must respectfully dissent.
D E W INE , J., concurs in the foregoing opinion.

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20 D ONNELLY , J., dissenting. {¶ 43} The Seventh District Court of A ppeals determined that appellant , Discovery Oil and Gas, L.L.C. (“ Discovery”), could be entitled to indemnification only if (1) it had given proper and timely notice to appellee, Wildcat Drilling, L.L.C. (“Wildcat”), of the claim of the Ohio Department of Natu ral Resources (“ODNR”), (2) it was legally lia ble to respond to the settled c laim, and (3) the settlement was fair and reasonable. 2018-Ohio-4015, 121 N.E.3d 65, ¶ 61, 69. That conclusion seems entirely reasonable and is consistent with our decision in Globe
Indemn

. Co. v. Schmitt , 142 Ohio St. 595, 53 N.E.2d 790 (1944), which has been relied upon by parties litigating c laims like those involved in this case for 75 years. {¶ 44} I conclude that the imminently practical and reasonable requirements for indemnif ication set forth in Globe Indemn. Co. should apply
whether or not there is an indemn ification clause in a contract . If the parties to a
contact intend to override those practical and reasonable requi rements, they should do so expressly, not impliedly by merely including an indemnifi cation clause. Going forward, a potential indemn itor willing to include indemn ification language in a contract would be grossly negligent not to expressly inclu de the Globe Indemn.
Co. requirements in the contract. C ertainly, an attorney who does not include those requirements for an indemnitor will, in my view, be liable for legal malpractice. So in reality, the harm that befalls Wildcat in this case will lik ely not be inflicted on many future parties in Wildcat ’s position. But that does littl e good for Wildcat
here. {¶ 45} The better course would be for t his court to explicitly expand its holding in Globe Indemn

. Co. and apply its requirements for indemnification to
contracts that contain indemnif ication agreements. And here, w e should conclude,
in the words of New York Cent. R. Co. v. Linamen , 171 Ohio St. 87, 167 N.E.2d 778 (1960): “Since [Discovery] ha s neither alleged nor proved t hat any notice of [the ODNR fine] was given to [Wildcat] before its [payment of t he fine] and [thatJanuary Term, 2020

21 the payment] was fair and reasonable, [Discovery] has not estab lished any right to recover its claimed loss in payment of that [fine].” Because t he court determines otherwise, I dissent.

_________________ Manchester Newman & Bennett, L.P .A., David A. Detec, and Thomas F. Hull II, for appellant.
Johnson & Johnson Law Firm and M olly K. Johnson, for appellee.

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