IN THE COURT OF APPEALS OF IOWA by vSTnB6

VIEWS: 0 PAGES: 5

									                   IN THE COURT OF APPEALS OF IOWA

                             No. 2-397 / 01-1587
                            Filed August 28, 2002


IOWA WINE AND BEVERAGE, INC.,
     Plaintiff-Appellee,

vs.

MARK MARTENS, d/b/a BLACKHAWK LIGHTING,
    Defendant-Appellant.


      Appeal from the Iowa District Court for Polk County, Larry J. Eisenhauer,

Judge.



      Mark Martens appeals the district court's decision in a declaratory

judgment action construing his duties as a tenant under a lease. AFFIRMED.



      Philip H. Dorff of Hopkins & Huebner, P.C., Des Moines, for appellant.



      Stephen D. Hardy and Clark I. Mitchell of Grefe & Sidney, P.L.C., Des

Moines, for appellee.




      Considered by Sackett, C.J., and Huitink and Hecht, JJ. Eisenhauer, J.,

takes no part.
                                        2


HUITINK, J.

      Mark Martens, doing business as Blackhawk Lighting, appeals the district

court's decree in a declaratory judgment action construing his duties as a tenant

under a lease. Martens claims the district court erred in declaring that the terms

obligated him to indemnify Iowa Wine and Beverage, Inc., the landlord, for its

own negligence. We affirm.

      I.      Background Facts and Proceedings

      In 1996 Martens entered into a lease agreement with the Isadore

Pomerantz Trust and Mabel Pomerantz, individually, for certain property in Des

Moines. In December 1998 the Pomerantzes sold the property to Iowa Wine,

and Iowa Wine took over the Pomerantzes' rights and duties under the lease.

      On January 24, 1999, Gustavo Moraza, a minor, was injured at the

property leased by Martens. Moraza's mother, Brenda Arreola, brought separate

tort suits against Martens and Iowa Wine. Martens settled his suit for $17,500.

The Iowa Wine suit was settled for $11,000.

      Iowa Wine filed a petition for declaratory judgment alleging that under the

terms of the parties' lease, Martens should indemnify it for the amount it paid to

Arreola, plus costs, expenses, and attorney fees. The lease provision at issue

provides:

      Except as to any negligence of the Landlord, arising out of roof and
      structural parts of the building, Tenant will protect, indemnify and
      save harmless the Landlord from and against any and all loss,
      costs, damage and expenses occasioned by, or arising out of, any
      accident or other occurrence causing or inflicting injury and/or
      damage to any person or property, happening or done, in, upon or
      about the leases premises, or due directly or indirectly to the
      tenancy, use or occupancy thereof, or any part thereof by the
      Tenant or any person claiming through or under the Tenant.
                                           3



The district court found the clear intent of the agreement was to provide

indemnification for Iowa Wine's own negligence. The court ordered Martens to

indemnify Iowa Wine for the settlement payment and costs of defense. Martens

appealed.

       II.    Scope of Review

       When the facts are not in dispute, our review in a declaratory judgment

action is for the correction of errors at law. Seeman v. Iowa Dep't of Human

Servs., 604 N.W.2d 53, 56 (Iowa 1999). The parties in this case filed a joint

stipulation of facts. Our review is for the correction of errors at law.

       III.   Merits

       Indemnity agreements are enforced according to their terms, as in any

other contract case. Martin & Pitz Assocs., Inc. v. Hudson Constr. Servs., Inc.,

602 N.W.2d 805, 808 (Iowa 1999). Absent ambiguity in the agreement, we are

bound by the language expressed in the contract. McComas-Lacina Constr. Co.

v. Able Constructors, 641 N.W.2d 841, 845 (Iowa 2002).

       An agreement relieving an indemnitee from its own negligence, however,

is looked on with some disfavor. Employers Mut. Cas. Co. v. Chicago & N.W.

Transp. Co., 521 N.W.2d 692, 694 (Iowa 1994); Thornton v. Guthrie County

Rural Elec. Co-op Ass'n, 467 N.W.2d 574, 576 (Iowa 1991) ("Our cases

recognize that there is something anomalous in seeking indemnity from another

for damages resulting from one's own negligence."). For this reason, a party will

not be indemnified for its own negligence unless the agreement provides for this

in clear and unequivocal language. Martin & Pitz, 602 N.W.2d at 809.
                                          4


       "On the other hand we have long recognized that a sufficiently clear

contractual provision for indemnity is enforceable, even when it applies to the

indemnitee's own negligence." Thornton, 467 N.W.2d at 567-77. There is no

requirement that the agreement expressly relieve the indemnitee for liability due

to its own negligence, "if the words of the agreement clearly import that intent."

Herter v. Ringland-Johnson-Crowley Co., 492 N.W.2d 672, 674 (Iowa 1992)

(citing Payne Plumbing & Heating Co., Inc. v. Bob McKiness Excavating &

Grading, Inc., 382 N.W.2d 156, 160 (Iowa 1986)); see also Hysell v. Iowa Public

Serv. Co., 534 F.2d 775, 785 (8th Cir. 1976) ("Under Iowa law, a contract need

not expressly specify that it will operate to indemnify a party for its own

negligence if the clear intent of the language is to provide such indemnification.").

       The lease agreement provides Martens will indemnify Iowa Wine for all

damages arising out of an injury on the premises, "[e]xcept as to any negligence

of the Landlord, arising out of the roof and structural parts of the building . . . ."

By specifically excepting negligence arising out of the roof and structural parts of

the building, the intent of the agreement is to make Martens responsible for Iowa

Wine's negligence in other areas. We concur in the district court's conclusion,

"the clear intent of the language of the agreement is to provide indemnification for

Iowa Wine's own negligence."

       We affirm the decision of the district court.

       AFFIRMED.

       Hecht, J., concurs; Sackett, C.J., concurs specially.
                                         5


SACKETT, C.J. (concurring specially)

        I too would affirm because I find no evidence of negligence on the part of

the plaintiff.

								
To top