Monaghans for William Monaghan's injury which occurred in that vestibule.
Since neither of Port Authority/PATH's challenges to the Vestibule Indemnity are successful, Port Authority/PATH is required to indemnify SZS for liability arising from accidents occurring in the vestibule. Since both the Stairway and Vestibule Indemnities are effective, Port Authority/PATH must indemnify SZS for its liability to the Monaghans regardless of whether it is attributable to injuries incurred by Monaghan in the vestibule or on Stairway 307.
As mentioned above, SZS' claim for contractual indemnity was advanced as an alternative to its common law indemnity claims. It is therefore necessary to determine what effect, if any, the finding herein that both of the contractual indemnity provisions are effective has on the allocation of liability found by the jury. That question, in turn, depends on, indeed is synonymous with, the question of what effect, if any, an indemnitee's own negligence has on a contractual indemnity provision.
The exact scope of a contractual promise to indemnify and the meaning of the provision regarding the indemnitee's own negligence may be determined by factors beyond the face of a written contract, see United States v. Seckinger, 397 U.S. 203, 212-13, 25 L. Ed. 2d 224, 90 S. Ct. 880 (1970) (Brennan, J.), but in the absence of explicit language in the contract a court must be "firmly convinced" by extrinsic factors that any proffered reading is correct. Seckinger, 397 U.S. at 211. The provision in the 1935 Easement Agreement expressly carves out an exception to the indemnification for "accidents resulting from or on account of negligence of any employee of the [SZS]." The contract is silent as to whether Port Authority/PATH must indemnify SZS against liability for an accident the responsibility for which is attributable in part to Port Authority/PATH and in part to SZS. The Seckinger Court interpreted a contractual provision that, on its face, only indemnified the indemnitee against liability arising from the negligence of the indemnitor, who was a contractor for the indemnitee.
In determining what force, if any, the indemnity provision had regarding accidents attributable to the negligence of both the indemnitor and the indemnitee, the Seckinger Court held that the most reasonable interpretation was that the parties had intended to be bound by a rule of comparative negligence. See Seckinger, 397 U.S. 203, 208, 214-15, 25 L. Ed. 2d 224, 90 S. Ct. 880; accord Shamrock Towing Co. v. City of New York, 16 F.2d 199 (2d Cir. 1926); see also United States v. Haskin, 395 F.2d 503 (C.A. 10th Cir. 1968); Brogdon v. Southern R. Co., 384 F.2d 220 (6th Cir. 1967); Williams v. Midland Constructors, 221 F. Supp. 400 (E. D. Ark. 1963); C & L Rural Elec. Coop. Corp. v. Kincaid, 221 Ark. 450, 256, 256 S.W.2d 337 (Ark. 1953), after remand, 227 Ark. 321, 299 (Ark. 1957); Young v. Anaconda American Brass Co., 43 Wis.2d 36, 168 N.W.2d 112 (Wis. 1969). Although Seckinger was a case in which the United States was a party, and in which the Federal Tort Claims Act was implicated, courts have readily adopted its approach to interpretation of indemnity agreements among non-governmental parties. See Tran v. Becker & Assocs., 767 F.2d 223, 229 (1985); Murphy Pacific Corp. v. Westinghouse Electric Corp., 331 F. Supp. 1348, 1349 (W.D. Wa. 1971).
Both the original and successor parties to the 1935 Easement Agreement were confronted with the fact that the easement to an extent intertwined their respective business operations, requiring cooperation by, and allocation of duties among, their respective employees and contractors. This is evidenced in the contract by the careful attempt made to allocate responsibility for lighting, cleaning, maintaining and securing the several stairways and vestibules. The very presence of an exception in the indemnity clause for accidents attributable to the negligence of SZS evinces the parties' awareness that an accident might occur on Stairway 307 due to the negligence of either party. The exception clearly indicates the parties' intention to affect no change in the common law default which attributes liability to the negligent party. If accidents due to the negligence of either party were envisioned and provided for by the parties, the parties must have intended that liability for accidents attributable to negligence of both parties would be proportionately shared.
This conclusion leaves the jury's allocation of the respective percentages of liability undisturbed. The jury found that Port Authority/PATH was liable to SZS on one of the two common law indemnity claims. The conclusion that Port Authority/PATH is also liable on the contractual indemnity, according to a comparative negligence scheme of apportionment, is consistent with the jury's finding and simply stands as an alternative basis for the jury's allocation. That allocation is identically applicable to a finding that SZS was entitled to common law indemnification as to the finding herein that SZS is also entitled to contractual indemnification.
It was agreed in the settlement that $ 7,500,000 is due to the Monaghan's in settlement of their claims against SZS. The jury's finding as to SZS' liability to the Monaghan's is a finding that SZS was, itself, negligent and is responsible for 15 percent of that settlement amount. The jury's finding as to Port Authority/PATH's percentage of the liability stands as that portion of SZS' liability to the Monaghan's that is attributable to Port Authority/PATH either through the common law indemnity found by the jury or through the contractual indemnity provision discussed here, in either case requiring Port Authority/PATH to pay 80 percent of the settlement amount.
For the reasons set forth above, plaintiffs' motion to enforce the November 14 settlement agreement is granted. In addition, the Port Authority/PATH, pursuant to the 1935 Easement Agreement, will indemnify SZS against its liability to the Monaghans to the extent of SZS' liability.
Settle order on notice.
It is so ordered.
New York, N. Y.
February 3, 1995
ROBERT W. SWEET