[Until this opinion appears in the Ohio Official Reports advance 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 formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 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. 

SLIP OPINION NO. 2020-OHIO-6821

WILDCAT DRILLING, L.L.C., APPELLEE, v. DISCOVERY OIL AND GAS, L.L.C.,

APPELLANT.

[Until this opinion appears in the Ohio Official Reports advance 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 common-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, 2020.) 

APPEAL from the Court of Appeals for Mahoning County, 

No. 17 MA 0018, 2018-Ohio-4015. 

__________________ 
SUPREME COURT OF OHIO

2

FRENCH, J. 

{¶ 1} We accepted the discretionary appeal of appellant, Discovery Oil and 

Gas, L.L.C. (“Discovery”), to consider whether the common-law requirements 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 indemnitor when the 

indemnitee has settled a claim without the indemnitor’s involvement, apply even 

when the rights of the parties are governed by a contract that includes an 

indemnification provision. Because parties have a fundamental right to contract, 

which includes the right to abrogate the common law, we conclude that the Globe

Indemn. Co. requirements do not apply when the parties express a clear intent to 

abrogate those common-law requirements. Because the Seventh District 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 not consider whether the 

parties’ contract expresses a clear intent to abrogate the common law on 

indemnification, we remand this matter to the trial court for further 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 Drilling, 

L.L.C. (“Wildcat”), for Wildcat to drill an oil and gas well for Discovery. The 

contract included several provisions relating to indemnification. 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 Paragraph 

13, it is understood and agreed by and between [Wildcat] and 

[Discovery] that the responsibility for pollution and contamination 

shall be as follows: 

17.9.1 [Wildcat] Liability – [Wildcat] shall assume full 

responsibility for and shall defend, indemnify, and hold [Discovery] 

and its joint owners harmless from and against any loss, damage, 

expense, claim, fine and penalty, demand, or liability for pollution 

or contamination, including control and removal thereof, that 

ordinates on or above the surface of the land or water from spills, 

leaks, or discharges of motor fuels, lubricants, and oils; pipe dope; 

paints and solvents; ballast, bilge, sludge, and garbage; and other 

liquids or solids in possession and control of [Wildcat]. These 

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 parties hereto 

that all indemnity obligations and/or liabilities assumed by such 

parties under the terms of this Contract will be without limit and 

without regard to the cause or causes thereof (including pre-existing 

conditions), strict liability, or the negligence of any party or 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 late 2014. 
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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 that Wildcat had violated Ohio law by 

improperly using brine water in its drilling operations. ODNR notified Discovery 

of the violation. Several months later, Discovery met with ODNR 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 to 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 breach of contract for Discovery’s failure 

to timely pay the invoice for Wildcat’s completed work. Discovery answered 

Wildcat’s complaint and asserted counterclaims for breach of contract and civil 

liability for criminal conduct, based on Wildcat’s illegal use of brine water and its 

refusal to indemnify Discovery for the ODNR fine. 

{¶ 5} The parties filed competing motions for summary judgment. 

Discovery argued that Wildcat was required under the terms of the contract to 

indemnify Discovery for the ODNR fine it had incurred due to Wildcat’s illegal use 

of brine water in its drilling operations. Wildcat argued that Discovery’s 

indemnification claim 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 Discovery’s payment of 

the fine to ODNR. Wildcat complained that it was deprived of the opportunity to 

defend against the purported violation. Based on that lack of notice, Wildcat 

maintained that it was under no duty to defend, indemnify, or hold Discovery 

harmless from the ODNR claim. 

{¶ 6} Discovery countered that the plain language of the contract did not 

require it to give Wildcat notice of the ODNR claim and instead obligated Wildcat 
January Term, 2020 

5

to indemnify Discovery for any fine or penalty relating to pollution or 

contamination. Discovery further argued that this court’s holding in Globe Indemn. 

Co. did not apply because that case dealt with principles of common-law indemnity, 

not contractual indemnity. And Discovery 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 judgment, 

finding that each party had breached the contract. According to the trial court, 

Discovery had breached the contract by failing to timely pay Wildcat’s invoice. 

And Wildcat had breached the contract by causing Discovery to pay a fine to 

ODNR as a result of Wildcat’s drilling practices. The trial court determined that 

Wildcat had known of the compliance issues with ODNR and that it could not claim 

that it did not have an opportunity to challenge the allegations 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 Discovery’s expenses, and 

to pay prejudgment interest pursuant to the contract. The trial court’s judgment 

entry did not address whether the parties’ contract expressed an intent to abrogate 

the common-law Globe Indemn. Co. requirements. It simply concluded that 

Discovery was entitled 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 Appeals. The appellate court reversed 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 with the notice 

required to be entitled to indemnification. 2018-Ohio-4015, 121 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 had given proper and 
SUPREME COURT OF OHIO

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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 reasonable. 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 indemnification clauses are not subject 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 whether 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 indemnitee has settled a 

claim without the indemnitor’s involvement, apply when the parties’ rights are 

governed by a contract that includes an indemnification provision. 

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 settles the loss 

voluntarily or has a judgment recovered against him. Id. at 604. The court 

expressed that an indemnitee’s voluntary payment does not negate 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 followed and applied Globe Indemn. Co. in other 

cases relating to indemnification, and it has expressly applied the Globe Indemn. 

Co. requirements to determine whether a party has a right to indemnification. See 

New York Cent. R. Co. v. Linamen, 171 Ohio St. 87, 88, 167 N.E.2d 778 (1960) 

(plaintiff did not establish a right to recover because plaintiff did not allege or prove 

that notice was provided to the defendant prior to settlement or 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 indemnification 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 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-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 contractual 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 the 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 the intent of the parties as expressed by the language 
SUPREME COURT OF OHIO

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 ascertain 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 the agreement”). 

{¶ 15} The contract here does not say unequivocally that Wildcat and 

Discovery intended to abrogate Ohio’s common-law indemnification requirements. 

Nor does it say that Discovery can voluntarily settle a claim without first giving 

Wildcat notice of the claim or that Discovery can settle a claim for any amount it 

chooses, even if that amount is unreasonable. To be sure, no talismanic or magical 

language is required in order to abrogate the common law through a contract. 

Rather, the focus is on the parties’ intent, as expressed by the 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,” which is presumed to be reflected in the contract’s 

language); In re All Kelley & Ferraro Asbestos Cases, 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 parties, which we presume 

rests in the language that they have chosen to employ”); Worth at 240 (the nature 

of the indemnity relationship depends on the intent of the parties, as expressed by 

the language in the contract). If the language used in the parties’ contract evinces 

a clear intent to abrogate the common-law Globe Indemn. Co. requirements, the 

contract should be applied as written and the indemnitor must indemnify 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), paragraph one of the syllabus. 

{¶ 16} The second dissenting opinion suggests that we are concluding that 

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 order 
January 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 cannot supplant clear 

terms contained in a contract. Our primary objective in construing a contract is to 

give effect to the parties’ intent. Kelley & Ferraro Asbestos Cases, 104 Ohio St.3d 

605, 2004-Ohio-7104, 821 N.E.2d 159, at ¶ 29. If the parties intend 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, instead a court must look to 

the contractual language to ascertain and give effect to the parties’ intent. And as 

we have already said, no talismanic or magical language is required to express a 

clear intent to abrogate 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 analysis on that issue. 

The trial court simply concluded that Discovery is entitled to indemnification. The 

court of appeals concluded that the Globe Indemn. Co. requirements apply 

regardless of the terms of the parties’ contract. We decline to conduct that analysis 

in the first instance and limit our review to the proposition of 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-law requirements on 

indemnification. 

III. Conclusion

{¶ 18} Because the Seventh District Court of Appeals applied the Globe 

Indemn. Co. requirements here without considering whether the parties abrogated 

those requirements in their contract, 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. 
SUPREME COURT OF OHIO

10 

Judgment reversed 

and cause remanded. 

O’CONNOR, C.J., and STEWART, J., concur. 

KENNEDY, J., concurs in judgment only in part and dissents in part, with an 

opinion. 

FISCHER, J., dissents, with an opinion joined by DEWINE, J. 

DONNELLY, J., dissents, with an opinion. 

_________________ 

KENNEDY, J., concurring in judgment only 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 disposition of this 

contract case, I concur in the court’s judgment reversing the judgment of the 

Seventh District Court of Appeals. However, there are still genuine issues of 

material fact precluding a grant of summary judgment in this case, and I would 

remand this matter to the trial court to resolve those issues in 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 tortfeasors. In that case, John Shillito Company 

(“Shillito”) contracted with Alois Schmitt to clean beneath iron 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 opening “unprotected 

and unguarded,” and a pedestrian fell through the opening, suffering serious injury. 

Id. at 596. Shillito’s insurer, Globe Indemnity Company, gave Schmitt 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 had 
January Term, 2020 

11 

become subrogated to any right of Shillito’s, sought indemnification 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 explained that this rule 

applies when the joint tortfeasors had been actively negligent. Id. at 599-600. We 

determined that Schmitt had been actively negligent and was primarily liable, while 

Shillito had been passively negligent and was secondarily liable as the landowner. 

Id. at 603. This court concluded that 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 and thereafter leaves the opening 

unprotected and unguarded, are equally liable to a pedestrian, who 

without fault steps into the opening and is injured, yet, as between 

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 former pays 

damages to the injured person has the right to indemnity. 

Id. at 603. 

{¶ 22} However, this court did not stop there but also offered “a concluding 

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 notice to the one from 

whom it is sought, that he was legally liable to respond and that 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 dicta. The requirements for preserving 

a right to indemnification were not at issue, and the only question was whether 
SUPREME COURT OF OHIO

12 

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

distinguishable from this case on its facts, because it concerned joint tortfeasors 

while the case before us involves parties to an express indemnification 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 indemnification clause, 

we need not decide that question on our own initiative in the first 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 District’s reversal of the 

trial court’s grant of summary judgment, and our review is de novo, 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 “there is no genuine 

issue as to any material fact and * * * the moving party is entitled to judgment as a 

matter of law.” Civ.R. 56(C). In reviewing a motion for summary judgment, we 

construe the evidence in favor of the nonmoving party and summary 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, indemnify, and 

hold [appellant, Discovery Oil and Gas, L.L.C.,] and its joint owners 

harmless from and against any loss, damage, expense, claim, fine 

and penalty, demand, or liability for pollution or contamination, 

including control and removal thereof, that ordinates on or above the 
January Term, 2020 

13 

surface of the land or water from spills, leaks, or discharges of * * * 

liquids or solids in possession and control of [Wildcat Drilling]. 

These obligations are assumed without regard to the negligence of 

any party or parties. 

{¶ 26} The contractual language does not make Wildcat Drilling strictly 

liable for every loss that Discovery Oil and Gas suffers. Rather, Wildcat Drilling 

is responsible for loss from contamination or pollution caused by the discharge of 

a liquid under Wildcat Drilling’s possession and control. Discovery Oil and Gas 

therefore must establish that Wildcat Drilling is responsible for 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 the indemnitor is not given notice and 

the opportunity to defend, the indemnitee must demonstrate actual 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 indemnification 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 would have to 

indemnify Discovery Oil and Gas regardless of whether notice and an opportunity 

defend had been given. 

{¶ 27} Wildcat Drilling presented evidence to establish a genuine issue 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, stated 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 only air, fresh water, 
SUPREME COURT OF OHIO

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 reasonable inference from 

the notice is that Romeo determined that the contamination had occurred during 

drilling and that Wildcat Drilling was responsible for the contamination. 

{¶ 28} In response, Wildcat Drilling presented the deposition testimony of 

John Howell, who supervised the drilling project on the day that the alleged 

violation was discovered. He acknowledged that it is illegal to use brine while 

drilling a surface hole. He also admitted that the drilling crew had put saltwater 

into the drilling system’s mud pump to keep the drilling equipment from freezing 

up in the cold weather. However, Howell stated that his crew had not put brine into 

the surface hole while drilling it. Instead, they had circulated saltwater only through 

the pump and into the “rathole” (which is a separate, shallower hole containing the 

apparatus used to turn the drill bit and which is coated with an impervious material 

to prevent contamination of the water table). The brine then passed through a ditch 

and into a retention pit, which had a liner to protect groundwater. Howell explained 

that the only way that the ONDR inspector could have taken a sample that contained 

saltwater was if he took the sample from the ditch—Howell disputed that the 

sample had come from the main hole. He believed that he had seen the inspector 

take a sample from the pit and he testified that it was not possible for the inspector 

to have taken a sample from the main hole during the drilling stage. 

{¶ 29} Howell testified that during the time that the inspector said that he 

had taken the sample, the cementer had already “hooked up to the main hole.” 

Howell pointed out that if the inspector had in fact tested the surface casing and 

found brine in the main hole, that sample would have been taken after Wildcat 

Drilling had moved off the well and a separate crew of cementers hired by 

Discovery Oil and Gas had control of the well. Similarly, Richard Liddle, a 

petroleum engineer and the president of Wildcat Drilling, testified that the cementer 
January 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 therefore responsible for the contamination. For 

this reason, summary judgment on Discovery Oil and Gas’s claim for 

indemnification is 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 remand this matter to 

the trial court to resolve the questions of fact that remain in this case. 

_________________ 

FISCHER, J., dissenting. 

{¶ 32} It has been a longstanding principle of Ohio law that parties have a 

fundamental right to contract freely with the expectation that the terms of their 

contract will be enforced. But today, the lead opinion concludes that the common 

law may supplant the terms in a negotiated contract entered into between two 

sophisticated parties when that contract does not explicitly derogate from the 

common law. Because I believe that the parties, who entered into a contract with 

an express indemnification provision, clearly indicated that they 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 indemnification provision in a contract that governs the 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 another should have 
SUPREME COURT OF OHIO

16 

paid, to require complete 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 implied 

indemnity, otherwise known as common-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 compelled by the judgment 

of a court having jurisdiction to pay the damages which ought to 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 indemnitee 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 parties, as expressed 

by the language used in the contract. Id. When the indemnitor expressly agrees to 

indemnify an indemnitee, the indemnitor is obligated to indemnify 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 that 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 ambiguity in the 

contract, the indemnitor is obligated to indemnify the indemnitee under the terms 

of the agreement. Allen at paragraph one of the syllabus. 

{¶ 35} Thus, because appellee, Wildcat Drilling, L.L.C. (“Wildcat”), and 

appellant, Discovery Oil and Gas, L.L.C. (“Discovery”), entered into a contract 
January Term, 2020 

17 

with an express indemnification provision, the terms of that contract should govern 

the rights of the parties. The lead opinion, however, determines that an 

indemnification provision included in the contract does not preclude implied 

indemnification unless the contract explicitly states otherwise. 

{¶ 36} The lead opinion has two problems 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 principles of implied 

indemnification. Neither Wildcat nor Discovery raised any issue relating to implied 

indemnification—Discovery’s entire claim is based on contractual indemnification, 

by which fault does not come into 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 raised a claim of implied 

indemnification. 

{¶ 37} The second problem in concluding that common-law 

indemnification can supplement the terms of contractual indemnification 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, under the lead 

opinion’s interpretation, would be meaningless. Parties who agreed 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 protections and 

the parties contract to lesser protections, what the parties are 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 include terms in derogation of common 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) (“absent 
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statute or enforceable contract, litigants pay their own attorneys’ fees”). This is 

why an express indemnification provision in a contract must govern the rights of 

the parties, unless that provision is ambiguous or otherwise unlawful. This is the 

only way that parties can fully understand and protect their rights under the 

contract. But the lead opinion effectively increases the parties’ 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, notice will be 

required regardless of whether the contract includes that term or not. The lead 

opinion’s recitation that the parties are free to negotiate the terms of a contract and 

that no talismanic language is required is contrary to its conclusion. 

{¶ 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 unequivocally reject the common law. I think the court 

should exercise greater caution before doing so. The parties to this contract 

included a merger clause stating that the contract is the complete and final 

agreement between the parties. As the lead opinion acknowledges, a notice 

provision was not a part of that agreement. Importantly, notice 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 the parties have not agreed to such 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 express 

indemnification provision in a contract, as the inclusion of such a provision is a 

clear intent to derogate from the common law. I would reverse the appellate court’s 

judgment on that issue. 

 
January Term, 2020 

19 

Remand to the trial court is unnecessary because no other issues remain to 

be resolved in this case

{¶ 41} The lead opinion remands the cause to the trial court to review the 

language of the contract, because the trial court’s judgment entry contains no 

analysis on the notice issue. But the trial court clearly considered the terms of the 

contract and determined that Wildcat was “in breach of the contract 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 beyond 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 voluntary 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 freely with the 

expectation that the contract shall endure according to its terms 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 responsibility or 

function of this court to rewrite the parties’ contract in order 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 appeal. Because the lead 

opinion creates a heightened standard of review for contracts with indemnification 

provisions by concluding that the Globe Indemn. Co. requirements may apply when 

the contract does not expressly and unequivocally state otherwise, and revives 

arguments that were fully adjudicated and not appealed, I must respectfully dissent. 

DEWINE, J., concurs in the foregoing opinion. 

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DONNELLY, J., dissenting. 

{¶ 43} The Seventh District Court of Appeals 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 Natural Resources 

(“ODNR”), (2) it was legally liable to respond to the settled claim, 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 claims like those involved in this case for 75 years. 

{¶ 44} I conclude that the imminently practical and reasonable 

requirements for indemnification set forth in Globe Indemn. Co. should apply 

whether or not there is an indemnification clause in a contract. If the parties to a 

contact intend to override those practical and reasonable requirements, they should 

do so expressly, not impliedly by merely including an indemnification clause. 

Going forward, a potential indemnitor willing to include indemnification language 

in a contract would be grossly negligent not to expressly include the Globe Indemn. 

Co. requirements in the contract. Certainly, 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 likely not be inflicted on 

many future parties in Wildcat’s position. But that does little good for Wildcat 

here. 

{¶ 45} The better course would be for this court to explicitly expand its 

holding in Globe Indemn. Co. and apply its requirements for indemnification to 

contracts that contain indemnification agreements. And here, we 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] has neither alleged nor proved that any notice of 

[the ODNR fine] was given to [Wildcat] before its [payment of the fine] and [that 
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21 

the payment] was fair and reasonable, [Discovery] has not established any right to 

recover its claimed loss in payment of that [fine].” Because the court determines 

otherwise, I dissent. 

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Manchester Newman & Bennett, L.P.A., David A. Detec, and Thomas F. 

Hull II, for appellant. 

Johnson & Johnson Law Firm and Molly K. Johnson, for appellee. 

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