U. S. A., Inc. v. Kirkland

236 S.E.2d 130, 142 Ga. App. 484, 1977 Ga. App. LEXIS 1664

• Court: Court of Appeals of Georgia
• Decided: May 13, 1977
• Docket: 53913, 53914
• Status: Published

Opinions

Webb, Judge.

The indemnitor in a "Hold Harmless Agreement” agreed to indemnify and hold harmless the indemnitee "from any and all acts on the part of [indemnitor’s] employees engaged in providing security or store detectives.” The indemnitor was providing security services for indemnitee at its stores, and because of the actions of provided security guards, various claims for false arrest, malicious prosecution etc. were filed against both parties. Indemnitee called upon indemnitor to defend the actions but met with refusal. Subsequently the plaintiffs in the damage actions secured favorable judgments and settlements. The trial court granted summary judgments to the indemnitee on its cross claims against the indemnitor under the "Hold Harmless Agreement,” and indemnitor appeals. We affirm.

1. Indemnitor contends that the agreement is too vague, uncertain and indefinite to be enforceable in that it does not state against whom or what it holds harmless and indemnifies and in what manner this is to be done. This argument is patently without merit, since the agreement holds indemnitee harmless "from any and all acts on the part of [indemnitor’s] employees engaged in providing security or store detectives.” The conclusion must be that it indemnifies against everyone having valid claims against indemnitee as a result of the acts of indemnitor’s employees so engaged, and the law provides how it shall be effected.

But if there be any ambiguity, it must be construed against indemnitor, who drew it. "It is well settled that, in a contract of this nature, any ambiguous provision is to be construed against the party who drew it and this is especially true regarding indemnity or exculpatory clauses.” Scarboro Enterprises, Inc. v. Hirsh, 119 Ga. App. 866, 870 (169 SE2d 182) (1969).

2. The trial court held: "[Indemnitee] also claims the sum of $2,403.80 as cost of defense of the case and claims that under their indemnity agreement they are entitled to these expenses. They cite Chesapeake & Ohio Ry. Co. v. Bailey Production Corp., 163 FSupp. 666 (D. C. W. Va., 1958).¹ [Indemnitor] takes the position that [indemnitee] is not entitled to these expenses under Central of Ga. R. Co. v. Southern Clays, Inc., 94 Ga. App. 377 (94 SE2d 625) (1956). [Indemnitor] contends that the indemnity provisions in the Central Railroad case are similar to the case sub judice since there was no requirement [in the agreement] to defend the case [and that under that ruling indemnitor] is not responsible for litigating expenses to [indemnitee].

"The court finds that the facts of Central of Ga. R. Co. v. Southern Clays, Inc., supra, are not applicable in this case. We have a question of indemnity and not a question of defending between the two litigating parties at bar and this court adopts the reasoning in Chesapeake & Ohio Ry. Co. v. Bailey Production Corp., supra.”

We agree. Accord, 41 AmJur2d 725, Indemnity, § 36.

Judgments affirmed.

Deen, P. J., and Marshall, J., concur. Argued May 5, 1977 Decided May 13, 1977 Rehearing denied June 1, 1977. Falligant, Kent & Toporek, Julian H. Toporek, Charles W. Barrow, for appellant. Bouhan, Williams & Levy, James M. Thomas, Alton K. Kitchings, Paul Painter, Jr., for Kirkland et al. James M. Thomas, John Wright Jones, for Rodriguez et al.

1 Indemnitor there agreed "To indemnify and save harmless [indemnitee] by reason of any of the acts of [indemnitor] or the acts of its employees in and about the prosecution of its strip mining operations under the terms hereof.”