Norfolk v. Werner Industries, Inc. , 21 N.C. App. 116 ( 1974 )

HEDRICK, Judge.

The sole question presented on this appeal is whether the pleadings, affidavits, interrogatories, and other exhibits introduced show that there is no genuine issue as to any material fact and that defendant is entitled to judgment as a matter of law. G.S. 1A-1, Rule 56 (c), Rules of Civil Procedure. Determination of whether summary judgment was correctly entered in this case involves a two-step investigation: First, the relevant portion of the indemnification provision must be construed; and second, the motion for summary judgment must be viewed in light of the construction given to the provision.

The key language of the indemnity agreement reads as follows:

“[Werner agrees] [t]o indemnify and save harmless Norfolk from and on account of injury to any person or persons . . . caused by or resulting from any acts or omissions, negligent or otherwise, of Contractor [Werner]. . . .”

If this language is interpreted to be clear, exact, and unambiguous then the terms of the contract are to be taken and understood in their plain, ordinary, and popular sense, Weyerhaeuser Co. v. Light Co., 257 N.C. 717, 127 S.E. 2d 539 (1962); Bailey v. Insurance Co., 222 N.C. 716, 24 S.E. 2d 614 (1943) ; however, if the material terms of this agreement are found to be ambiguous then the principle that such writing should be construed against its preparer (Norfolk in this case) must govern. Trust Co. v. Medford, 258 N.C. 146, 128 S.E. 2d 141 (1962); Jones v. Realty Co., 226 N.C. 303, 37 S.E. 2d 906 (1946).

It is our view that the language “acts and omissions, negligent or otherwise, of Contractor” is unambiguous and simply and plainly means that if Werner is negligent and such negligence is the proximate cause of injury or death then the defendant shall be responsible to save plaintiff harmless. See, Singleton v. R. R., 203 N.C. 462, 166 S.E. 305 (1932). Plaintiff submits that by its choice of the words “any acts or omissions, negligent or otherwise” (emphasis added) that it was attempting to effect the maximum indemnification coverage and thereby insure itself against loss regardless of whether injury or death was caused by plaintiff’s negligence, defendant’s negligence, the negligence of both, or the negligence of neither. Such a reading of the indemnity provision strains the meaning of the relevant portion of the agreement, accents the ambiguous nature of the language, and prompts a strict construction of the writing. Trust Co. v. Medford, supra; Jones v. Realty Co.,

supra. Furthermore, the indemnity provision according to the preceding analysis can be construed as seeking to exculpate plaintiff from its own negligence and such interpretation, also requires that the provision be strictly construed. Gibbs v. Light Co., 265 N.C. 459, 144 S.E. 2d 393 (1965). Therefore, regardless of which construction is given the indemnity provision the result is the same.

Next, we must review the pleadings, affidavits, interrogatories, and other exhibits, in light of the above discussed construction of the indemnity provision, to ascertain whether they create a genuine issue as to any material fact. Plaintiff strenuously contends that the affidavit of Jerry Boyles, particularly that portion pertaining to the method or technique of operation of the unloading ramp, serves to raise a genuine issue as to whether defendant Werner was negligent. We do not agree. The matter contained in the affidavit does not serve to raise an inference of negligence on defendant’s part which must be submitted to a jury, but rather any possible inference of negligence derived from the affidavit would be nothing more than the product of speculation or conjecture and not sufficient to avoid summary judgment.

The decision of the trial court granting defendant’s motion for summary judgment is

Affirmed.

Judge Campbell concurs in the result. Judge Baley dissents.