Opinion Information Sheet

			

          IN THE SUPREME COURT OF THE STATE OF WASHINGTON

SNOHOMISH COUNTY PUBLIC                             )
TRANSPORTATION BENEFIT AREA                         )      No. 83795-3
CORPORATION, dba COMMUNITY                          )
TRANSIT,                                            )
                                                    )
                      Petitioner,                   )
                                                    )
       v.                                           )      En Banc
                                                    )
FIRSTGROUP AMERICA, INC., dba FIRST                 )
TRANSIT, a foreign corporation,                     )
                                                    )
                      Respondent.                   )      Filed February 23, 2012
_______________________________________)

       MADSEN, C.J. -- We are asked to determine whether the parties' indemnity 

agreement clearly and unequivocally indemnifies the Snohomish County Public 

Transportation Benefit Area Corporation, doing business as Community Transit 

(Community Transit), for losses resulting from its own negligence. We conclude that the 

language of the agreement, and in particular language providing that indemnity would not  

No. 83795-3

be triggered if losses resulted from the sole negligence of Community Transit, clearly and 

unequivocally evidences the parties' intent that the indemnitor, FirstGroup America, Inc., 

doing business as First Transit (First Transit), indemnify Community Transit for losses 

that resulted from Community Transit's own, but less than sole, negligence.  We thus join 

the majority of courts deciding this issue.

       We reverse the Court of Appeals' decision to the contrary and remand this matter 

to the trial court for further proceedings.

                                            FACTS

       In 2002, Community Transit entered into a service contract with Coach USA 

Transit to provide commuter bus service for Community Transit.  The contract 

incorporated an indemnity provision stating:

       "The Contractor shall defend, indemnify and save harmless Community 
       Transit . . . from any and every claim and risk, including, but not limited to, 
       suits or proceedings for bodily injuries . . . , and all losses, damages, 
       demands, suits, judgments and attorney fees, and other expenses of any 
       kind, on account of all personal bodily injuries . . . , property damages of 
       any kind, . . . in connection with the work performed under this contract, or 
       caused or occasioned in whole or in part by reason of the presence of the 
       Contractor or its subcontractors, or their property, employees or agents, 
       upon or in proximity to the property of Community Transit, . . . except only 
       for those losses resulting solely from the negligence of Community Transit, 
       its officers, employees and agents."

Clerk's Papers (CP) at 14, 152 (emphasis added) (quoting section 3.54 of Request for 

Proposal #19-01 (Sept. 13, 2001)).  Coach USA Transit later assigned its interests, rights, 

obligations, and duties under the contract to First Transit.

       Pursuant to the parties' contract, First Transit provided commuter services between 

                                               2 

No. 83795-3

Snohomish County and parts of King County.  On February 24, 2004, during afternoon 

rush hour, a multiple vehicle accident occurred on Interstate 5 when a driver of a Toyota 

Corolla braked quickly and the driver of the second car behind it, a Honda Accord, was 

unable to stop in time and struck the car immediately behind the Corolla, pushing the 

Corolla into the oncoming high occupancy vehicle lane where it was struck by a First 

Transit bus.  A Community Transit bus traveling immediately behind the First Transit bus 

then rear-ended the First Transit bus.

       Community Transit tendered 42 claims for damages resulting from the accident to 

First Transit, which refused to defend, indemnify, or hold Community Transit harmless 

from the claims.  Community Transit settled the claims and sued First Transit for 

indemnification.

       Both parties moved for summary judgment.  The parties stipulated to facts for 

purposes of their cross motions for summary judgment, including the facts above.  In 

addition, the parties stipulated that the accident was caused by the shared negligence of 

the driver of the Honda Accord and the driver of the Community Transit bus and 

Community Transit is responsible for the negligence of its driver under respondeat

superior, that neither First Transit nor the driver of the First Transit bus was negligent,

and that the accident did not result from the sole negligence of Community Transit.  The 

trial court granted summary judgment in favor of First Transit.  In an unpublished

opinion, the Court of Appeals affirmed summary judgment.  Snohomish County Pub. 

Transp. Benefit Area Corp. v. FirstGroup Am., Inc., noted at 152 Wn. App. 1021, 2009 

                                               3 

No. 83795-3

WL 3018749, review granted, 168 Wn.2d 1011 (2010). We granted First Transit's 

petition for discretionary review and now reverse.

                                         ANALYSIS

       The central issue in this case is whether the indemnity agreement between 

Community Transit and First Transit clearly and unequivocally shows the parties' intent 

that First Transit would be required to indemnify Community Transit for losses resulting 

from Community Transit's own negligence.  Although we have not previously 

encountered the specific language of the present contract, we have established the 

governing principles.

       This matter is here following grant of summary judgment.  There are no material 

disputed facts, and accordingly the propriety of the summary judgment is a question of 

law that we review de novo. Further, where facts are undisputed and there is no extrinsic 

evidence presented on the issue, the meaning of a contract may be decided as a matter of 

law.  Mut. of Enumclaw Ins. Co. v. USF Ins. Co., 164 Wn.2d 411, 424, 191 P.3d 866

(2008); see also Tanner Elec. Coop. v. Puget Sound Power & Light Co., 128 Wn.2d 656, 

674, 911 P.2d 1301 (1996).

       A party may contractually indemnify against loss that results from the party's own 

negligence unless prohibited from doing so by statute or public policy.  Nw. Airlines v. 

Hughes Air Corp., 104 Wn.2d 152, 155, 702 P.2d 1192 (1985). This is a specific 

application of the general rule that "[u]nder the principle of freedom to contract, parties 

are free to enter into, and courts are generally willing to enforce, contracts that do not 

                                               4 

No. 83795-3

contravene public policy."  Keystone Land & Dev. Co. v. Xerox Corp., 152 Wn.2d 171, 

176, 94 P.3d 945 (2004). "[T]he mere existence of an indemnification clause attempting

to indemnify the indemnitee from its own negligence" has "never been found to be 

against public policy."  Nw. Airlines, 104 Wn.2d at 156.  Even when an agreement 

indemnifies against sole negligence our "rules do not say that indemnification clauses are 

void as against public policy or that, as a matter of law, an indemnitor cannot be held 

responsible for an indemnitee's sole negligence."  Id. at 158. Rather, the only time that 

public policy has barred indemnification of the indemnitee in this state is when the 

legislature has declared in specified circumstances that indemnification for the 

indemnitee's sole negligence is against public policy, as it did in RCW 4.24.115, which 
does not apply in this case.1

       Generally speaking, indemnity agreements to indemnify against claims and losses 

resulting from the indemnitee's own negligence are enforceable contracts, and we have 

"long preferred to enforce indemnity agreements as executed by the parties."  McDowell

v. Austin Co., 105 Wn.2d 48, 53-54, 710 P.2d 192 (1985).  

              "'Contracts of indemnity . . . must receive a reasonable construction 
       so as to carry out, rather than defeat, the purpose for which they were 
       executed.  To this end they should neither, on the one hand, be so narrowly 
       or technically interpreted as to frustrate their obvious design, nor, on the 
       other hand, so loosely or inartificially as to relieve the obligor from a 
       liability within the scope or spirit of their terms.'"

1 "'In general, a contract which is not prohibited by statute, condemned by judicial decision, or 
contrary to the public morals contravenes no principle of public policy.'"  State Farm Gen. Ins. 
Co. v. Emerson, 102 Wn.2d 477, 481, 687 P.2d 1139 (1984) (quoting 17 C.J.S. Contracts § 211, 
at 1024 (1963)).
                                               5 

No. 83795-3

Id. (quoting Union Pac. R.R. v. Ross Transfer Co., 64 Wn.2d 486, 488, 392 P.2d 450 

(1964) (quoting 27 Am. Jur. Indemnity § 13, at 462 (1940))). In short, indemnification 

agreements are to be interpreted in the same way as other contracts.  Jones v. Strom 

Constr. Co., 84 Wn.2d 518, 520, 527 P.2d 1115 (1974). For example, when we held that 

an express contractual agreement to indemnify prevails over the "'borrowed servant'" tort 

defense, we noted that any other result "would frustrate the reasonable expectations of the 

contracting parties and thus interfere with their freedom to contract."  Stocker v. Shell Oil 

Co., 105 Wn.2d 546, 549-50, 716 P.2d 306 (1986).

       We have recognized that "[p]arties rely on indemnity agreements for allocating the 

responsibility to purchase insurance when a construction project is initiated" and it "is not 

for this court to frustrate such a planning device."  McDowell, 105 Wn.2d at 54; see also 

Riggle v. Allied Chem. Corp., 180 W. Va. 561, 568, 378 S.E.2d 282 (1989).

       Nevertheless, we have also recognized that agreements that "purport to exculpate 

an indemnitee from liability for losses flowing solely from his own acts or omissions are 

not favored and are to be clearly drawn and strictly construed, with any doubts therein to 

be settled in favor of the indemnitor."  Jones, 84 Wn.2d at 520.  Accordingly, as do many 

other states, we apply the "general rule that a contract of indemnity will not be construed 

to indemnify the indemnitee against losses resulting from his own negligence unless this 

intention is expressed in clear and unequivocal terms."  Nw. Airlines, 104 Wn.2d at 154-

55. The primary purpose of this strict standard is to assure that the parties truly intended 
to indemnify for the indemnitee's negligence.2

                                               6 

No. 83795-3

       Under this standard, we will not find clear and unequivocal intent in broad and all-

encompassing contract language that does not include specific language showing clear 

and unequivocal intent to indemnify the indemnitee's own negligence.  Nw. Airlines, 104 

Wn.2d at 155.  But formulaic language expressly stating that "X indemnifies Y for Y's 

own negligence" is not mandatory either, and in cases where we have enforced 

agreements for indemnification in the event of the indemnitee's own negligence, such 

precise language was not present.  What is required is language unquestionably showing

the parties' intent to indemnify in the event of losses resulting from the indemnitee's

negligence.

       For example, in Northwest Airlines a commercial lease provided that a lessee was 

obligated to indemnify the lessor "'from and against any and all claims, demands, causes 

of action, suits or judgments (including costs and expenses incurred in connection 

therewith) for deaths or injuries to persons or for loss of or damage to property arising out 

of or in connection with the use and occupancy of the premises by Lessee . . . whether or 

2 We have previously observed that one jurisdiction has stated the purpose of the rule is to 
prevent injustice and make certain that a contracting party has fair notice that a large and ruinous 
award could be assessed because of negligence attributed to the other party.  McDowell, 105 
Wn.2d at 53 (citing Joe Adams & Son v. McCann Constr. Co., 475 S.W.2d 721, 722 (Tex. 1971), 
overruled by Ethyl Corp. v. Daniel Const. Co., 725 S.W.2d 705 (Tex. 1987)).  Although the 
dissent relies on this language as evidencing this court's "reluctance to find that parties intend to 
indemnify against losses caused by the indemnitee's negligence," dissent at 1, we made this 
observation about Texas law while summarizing a survey of approaches taken by other courts.  
These are important concerns for parties entering indemnity agreements, but they have not led us 
to declare such agreements to be in violation of public policy.  As we have also noted, an 
indemnity agreement is often one tool among many employed to allocate risks between parties.  
McDowell, 105 Wn.2d at 54.  What might appear to be a one-sided agreement, especially in the 
context of particular factual circumstances, may be only one aspect of a more complex business 
arrangement.
                                               7 

No. 83795-3

not caused by the Lessor's negligence.'"  Id. at 153 (emphasis omitted) (quoting clerk's 

paper). We concluded that even under the stringent rule of construction that applies, this 

clause clearly included coverage for the indemnitee's negligence.

       In so doing, we distinguished Jones, upon which the lessee relied.  In Jones, a 

subcontractor agreed to indemnify a general contractor "'against any and all suits, claims, 

actions, losses [etc.] arising out of, in connection with, or incident to the Subcontractor's

performance of this Subcontract.'"  Jones, 84 Wn.2d at 521 (quoting agreement).  An 

employee of the subcontractor was injured when flooring collapsed due to lack of shoring 

beneath it.  The general contractor was solely responsible for the lack of shoring.  We 

looked at the language of the clause and concluded that because it referred only to the 

subcontractor's performance of the contract and did not mention or refer to the general

contractor's performance, it did not apply in the circumstances.  Id. (on a "'close[] 

reading and analysis'" the indemnity clause "'ties the losses . . . to claims . . . "in 

connection with," . . . the [subcontractor's] performance of the subcontract'" and "'makes 

no mention of or reference to [the contractor's] "performance" of the primary contract'").  

We found it "'clear that unless an overt act or omission on the part of [the subcontractor] 

in its performance of the subcontract in some way caused or concurred in causing the loss 

involved, indemnification would not arise.'"  Id. at 521-22. Therefore, because "'it was 

the [contractor's and not the subcontractor's] performance or nonperformance of its 

contractual obligations which was the sole cause of the accident involved, [the 

subcontractor] would not be obligated under the indemnity clause.'"  Id. at 522.

                                               8 

No. 83795-3

       As we subsequently explained in Northwest Airlines, the indemnitor's overt act or 

omission was required before the obligation to indemnify was triggered because that is 

what the language of the contract required.  "Jones held only that the language of the 

indemnity clause involved in that case could not be construed to require indemnification 

where the acts of the indemnitee were the sole cause of the injury."  Nw. Airlines, 104 

Wn.2d at 157 (emphasis added).  We clarified in Northwest Airlines "that, for an 

indemnitor to be found responsible for the indemnitee's own negligence, the agreement 

must be clearly spelled out."  Id. at 158. There was no language in the indemnity 

agreement in Jones that clearly spelled out any intent to indemnify in the event of the 

general contractor's negligence.  The general contractor's conduct was never even 

addressed in the indemnity provision.

       McDowell is another case where we determined that an indemnity agreement 

applied in the case of the indemnitee's own negligence.  McDowell involved an 

indemnification provision in a construction contract between a general contractor and a 

subcontractor that indemnified the owner and the general contractor

       "against all liability for personal injury, including death resulting therefrom, 
       sustained by any person directly or indirectly employed by Subcontractor or 
       its subcontractors, caused or alleged to have been caused, directly or 
       indirectly, by an act or omission, negligent or otherwise, by Owner or 
       Austin [the general contractor] or persons directly or indirectly employed 
       by them."

McDowell, 105 Wn.2d at 49-50 (emphasis omitted) (quoting agreement).  We held that 

this indemnity clause indemnified the general contractor for its own concurrent 

                                               9 

No. 83795-3

negligence even though the clause did not mention "concurrent" negligence.  Policy 

considerations did not require that the "agreement be held unenforceable for failing to 

expressly mention concurrent negligence."  Id. at 53.

       Reaffirming Northwest Airlines, we noted that "general rules that disfavor an 

agreement to indemnify an indemnitee against its own negligence do not render such a 

clause void or unenforceable as a matter of law."  Id. at 54. The rules require, we 

repeated, that the agreement must be clearly spelled out.  Id. By expressly referring to 

the "act or omission" of the indemnitee, "negligent or otherwise," the indemnity 

agreement showed clearly and unequivocally the intent to indemnify in the event losses 

were the result of the indemnitee's own negligence.

       First Transit maintains that the language of the indemnity agreement shows that 

Community Transit is not indemnified for its concurrent negligence.  It begins with an 

examination of the language "in connection with work performed under this contract," 

arguing that under Jones, this requires that there be some overt act or omission by First 

Transit.  But just as the lessee in Northwest Airlines misread Jones, so does Community 

Transit.  As we emphasized in Northwest Airlines, the important question is whether the 

agreement clearly provides for indemnification when losses result from the indemnitee's

negligence.  The agreement must speak to the negligence of the indemnitee.

       As mentioned, in Jones the requirement of an act or omission by the indemnitor

(the subcontractor) existed because that is what the express language of the parties' 

agreement required.  The agreement made no mention of the indemnitee's negligence

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No. 83795-3

whatsoever.

       Here, in contrast, the agreement does not end with the "in connection with" 

language.  Rather, it also expressly and specifically refers to losses resulting from the 

negligence of the indemnitee, first saying that indemnification is required for any and all 

claims and risks and all losses and then adding that no indemnification is required if the 

losses result from the indemnitee's sole negligence.  It cannot be said that the parties did 

not consider the possibility of losses resulting from the indemnitee's own negligence or 

the effect of such negligence. The language shows that the parties consciously and 

deliberately considered the question of indemnity in connection with the indemnitee's

negligence and, having done so, decided to exclude only the indemnitee's sole negligence 

as a trigger. Like in McDowell, the agreement does not mention "concurrent" negligence, 

but like in McDowell, the absence of the word "concurrent" does not alter our holding.  

The express language of the indemnity agreement shows clear and unequivocal intent to 

indemnify for loss resulting from the negligence of the indemnitee provided the loss does 

not result from the sole negligence of the indemnitee and this necessarily includes the 

indemnitee's concurrent negligence.

       Indeed, if the indemnity agreement was not intended to provide for 

indemnification in the event of the indemnitee's negligence short of sole negligence, there 

would have been no reason to include the language at all.  An interpretation of a contract 

that gives effect to all provisions is favored over an interpretation that renders a provision 

ineffective, and a court should not disregard language that the parties have used.  Wagner 

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No. 83795-3

v. Wagner, 95 Wn.2d 94, 101, 621 P.2d 1279 (1980). The exception proviso in the 

indemnity clause has meaning only in relation to negligence of the indemnitee and only if 

read, as obviously intended, to mean that Community Transit's negligence will trigger the 

obligation to indemnify but not if it is the sole negligence.

       We conclude that the indemnity agreement provides for indemnification in the 

event of losses resulting from Community Transit's concurrent negligence.  In relevant 

part, the contract says that First Transit will indemnify Community Transit "'from any 

and every claim and risk . . . and all losses . . . in connection with the work performed 

under this contract . . . except only for those losses resulting solely from the negligence of 

Community Transit.'" CP at 14 (quoting section 3.54 of Request for Proposal #19-01 

(Sept. 13, 2001)).  First Transit was engaged in the performance of the work under the 

contract when the injuries occurred "in connection with" that performance.  The parties 

have stipulated that Community Transit was negligent, but not solely negligent.  Thus, 

under the terms of the indemnity agreement and the facts of this case, First Transit is 

obligated to indemnity Community Transit for the claims it paid that resulted from the 

multiple vehicle accident involving both First Transit and Community Transit buses.

       Our decision in this case accords with the holding in Cope v. J.K. Campbell & 

Associates, Ltd., 71 Wn.2d 453, 454, 429 P.2d 124 (1967).  The indemnity agreement in 

Cope mentioned negligence only in the context of an exclusion for the sole negligence of 

the indemnitee.  The agreement provided: 

       "The Subcontractor shall be responsible and liable for, and shall save the 
       Contractor and the Government harmless from all suits, claims and 
                                               12 

No. 83795-3

       demands of whatsoever kind or nature arising out of or in connection with 
       the work to be performed under this Subcontract; provided, that this article 
       shall not apply to suits, claims or demands solely due to the fault or 
       negligence of the Contractor or Government, or both . . . ."

Cope, 71 Wn.2d at 454 (emphasis added), quoted in McDowell, 105 Wn.2d at 53.  The 

court held that the indemnity clause required indemnification for loss caused by the 

concurrent negligence of the indemnitee.  Just as in the present indemnity clause, the only 

mention of the indemnitee's negligence was in the sole negligence exception.  Cope was 

cited with approval in McDowell as a case in which an indemnity agreement was upheld 

as encompassing concurrent negligence without expressly referring to it, thus confirming 

Cope's continuing precedential value on the matter of indemnity for the indemnitee's
negligence.3  See also Stocker, 105 Wn.2d at 548-51 (an express agreement to indemnify 

against "damage and injuries arising out of performance of the contract," but "exclud[ing] 

indemnification for [the indemnitee's] sole negligence" was "unquestionably 

enforceable" and would be given effect over the borrowed servant doctrine because to 

hold otherwise "would interfere with [the parties] freedom to contract" and "would 

frustrate the clearly expressed intent of the parties").

3 The dissent criticizes our citation to Cope, 71 Wn.2d at 454, dissent at 2-3, but seems to ignore 
the fact that the case was cited with approval in McDowell.  Contrary to the dissent's view that 
Cope has been eclipsed, McDowell is to the contrary.  The court in McDowell appreciated the fact 
that Cope did not involve "all-encompassing language" like that disapproved in Jones, 84 Wn.2d 
at 521, that is, language requiring indemnification for all losses "arising out of, in connection with, 
or incident to" performance of the contract.  See also Tucci & Sons, Inc. v. Madsen, Inc., 1 Wn. 
App. 1035, 1036, 467 P.2d 386 (1970), overruled by Jones, 84 Wn.2d 518 (containing the same 
language as in Jones. Rather, Cope involved an indemnity agreement with a "sole" negligence 
exception to the duty to indemnify, which expressly places the indemnitee's negligence for 
anything less than sole negligence squarely within the terms of the parties' indemnity agreement, 
just as is true in the present case.
                                               13 

No. 83795-3

       Our decision also finds a great deal of support in cases from other jurisdictions.  In 

the many jurisdictions that permit indemnity agreements where the indemnitee's own 

negligence triggers coverage, the majority rule under the same strict standard that we 

apply is that when the indemnity agreement contains no reference to negligence other 

than in a sole negligence exception like the one at issue here, the indemnity clause clearly 

and unequivocally shows intent to indemnify for the indemnitee's negligence.  In 

Ralph M. Parsons Co. v. Combustion Equipment Associates, Inc., 172 Cal. App. 3d 211, 

219, 218 Cal. Rptr. 170 (1985), a subcontractor agreed to indemnify the contractor and 

owner against "all liability, loss, damage, expense, costs" arising out of the 

subcontractor's performance of the work under the contract "except such loss or damage 

which was caused solely by the negligence of Contractor or of Owner."  The court said 

that "the indemnity agreement . . . is not silent with respect to the issue of [the 

contractor's negligence; the issue of [the contractor's] negligence is specifically 

addressed."  Id. at 220. The court held that the indemnity agreement

       clearly and explicitly addresses the issue of [the contractor's] negligence.  It 
       provides that [the subcontractor] shall indemnify [the contractor] for all 
       liability in connection with the work unless it was caused solely by the 
       negligence of [the contractor] or [the owner].  It follows necessarily that all 
       other liability, whether resulting from the negligence of [the subcontractor] 
       or the concurrent negligence of [the subcontractor] and [the contractor] . . . 
       was intended to be the responsibility of [the subcontractor].

Id. at 221. Under California law, agreements to indemnify against an indemnitee's own 

negligence "must be clear and explicit and [are] strictly construed against the 

indemnitee."  Rossmoor Sanitation, Inc. v. Pylon, Inc., 13 Cal. 3d 622, 628, 532 P.2d 97, 

                                               14 

No. 83795-3

119 Cal. Rptr. 449 (1975). Nevertheless, California courts have held that indemnity 

contracts with the same language as the one here clearly provide indemnity for concurrent 
negligence.4

4 The dissent says that California actually takes the "same narrow approach that we have used."  
Dissent at 6 (citing Guy F. Atkinson Co. v. Schatz, 102 Cal. App. 3d 351, 161 Cal. Rptr. 436 
(1980)).  The dissent is mistaken.  First, we have not taken the extremely narrow approach that 
the dissent says we have.  Second, Guy F. Atkinson was decided by the California Court of 
Appeals, First District.  In a subsequent case from the First District, the court expressly agreed 
with Ralph M. Parsons, 172 Cal. App. 3d at 220 (discussed above in the text), that since a sole 
negligence exclusion excludes loss or damage caused solely by the indemnitee, loss or damage 
resulting from the combined negligence of the indemnitor and indemnitee was necessarily included 
and the indemnity clause was not a general indemnity agreement.  JPI Westcoast Constr., LP v. 
RJS & Assocs., Inc., 156 Cal. App. 4th 1448, 1467 n.4, 68 Cal. Rptr. 3d 91 (2007).
       Third, the dissent misreads Guy F. Atkinson in any event.  As mentioned, in Rossmoor, 13 
Cal. 3d at 628, the California State Supreme Court stated the same rule that we apply here.  That 
court also explained that when an indemnity clause did not address itself to the issue of the 
indemnitee's negligence, it was deemed a "general" indemnity agreement and would not be 
construed to provide indemnity unless the indemnitee was "actively" negligent, i.e., had personally 
participated in an affirmative act of negligence rather than mere nonfeasance.  Id. at 629. The 
court also stated that "[i]n actuality, however, we do not employ the active-passive dichotomy as 
wholly dispositive," but instead consider the intent of the parties and whether they intended to 
indemnify for the indemnitee's negligence.  Id. at 632-33.
       In Guy F. Atkinson, the court repeated the California Supreme Court's principles 
respecting general and specific indemnity agreements, assumed that the indemnity agreement was 
a specific indemnity agreement, and proceeded to construe the contract in accord with 
Rossmoor's direction that applicability of the indemnity agreement turned on the parties' intent.  
Guy F. Atkinson, 102 Cal. App. 3d at 358.  The indemnitee, a general contractor, sought 
indemnification for injury to the indemnitor-subcontractor's employee who was injured on the job.  
The indemnification agreement provided that the indemnitor was to indemnify the indemnitee
against liability arising out of acts or omissions of the indemnitor in connection with performance 
of the contract unless due solely to the negligence of the indemnitee.  This turned out to depend 
on whether the indemnitor was also negligent, which would mean the indemnitee's negligence was 
not the sole cause of injury.  The court concluded that even if the indemnitor could be said to be 
negligent, "its negligence consisted at most in the fact that its two employees on the job 
performed their work in an area exposed to a dangerous condition created by the" indemnitee-
general contractor.  Id. at 358-59. The court believed that to read the contract as providing 
indemnification in such circumstances would come very close to indemnity for sole negligence of 
the indemnitee when that negligence consisted of creating a hazardous condition on the job.  The 
court concluded that if that was what was intended, more precise language could have been 
employed to convey such intent and concluded that the indemnity agreement did not apply in the 
circumstances.  Id. at 359. It is uncertain why the dissent believes that Guy F. Atkinson follows 
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No. 83795-3

       In Chance v. Designer Wardrobe Trailers, Inc., No. 07-9427, 2009 WL 799963, at 

*3 (E.D. La. Mar. 24, 2009) (unpublished) (applying California law), a lessee of 

equipment agreed to indemnify a lessor for "[a]ll risk of loss or damage of said equipment 

from whatever cause during this agreement, . . . Lessee agrees to indemnify Lessor . . . for 

all claims . . . damages and liabilities . . . arising out of, or in connection with or resulting 

from equipment or materials . . . unless arising out of the sole negligence of Lessor."  The 

court was "convinced that the indemnity agreement specifically addresses the issue of 

[the lessor's] own negligence and that [the lessee] ha[d] agreed to indemnify [the lessor] 

against its own negligence so long as [the lessor's] negligence [was] concurrent with the 

negligence of [the lessee] or another party."  Id. at *6.  The court applied California 

courts' holdings that agreements to indemnify for the indemnitee's own negligence "must 

be clear and explicit" and "express and unequivocal" and "that a specific exclusion for 

the indemnitee's sole negligence indicates an intent to indemnify against the indemnitee's

own negligence when it is concurrent or combined with the negligence of the indemnitor

or other parties."  Id. at *4-5.

       In another case from California, a subcontractor agreed to indemnify the contractor 

"against any and all liability, claims, judgments, or demands . . . save and except claims 

or litigation arising through the sole negligence or sole willful misconduct of Contractor."  

C.I. Eng'r's & Constructors, Inc. v. Johnson & Turner Painting Co., 140 Cal. App. 3d 

1011, 1014, 189 Cal. Rptr. 824 (1983). The court followed the rules that an agreement 

the narrow approach that it thinks this court should take.
                                               16 

No. 83795-3

"'for indemnification against an indemnitee's own negligence . . . must be clear and 

explicit and is strictly construed against the indemnitee.'"  Id. at 1015 (internal quotation 

marks omitted) (quoting Guy F. Atkinson, 102 Cal. App. 3d at 356).  While the court 

found some of the language used in the particular agreement unclear, it said that the 

language "becomes unambiguous when highlighted against the contractual limitation later 

alluded to in the indemnity clause, that is, that the contractor was not to be indemnified 

for claims or litigation arising through its sole negligence or sole wilful misconduct."  Id.

       The court explained:

       [I]s there a legally significant semantic distinction between saying "I expect 
       to be indemnified against any and all claims arising out of job related 
       injuries, including those arising from my negligence" and "I expect to be 
       indemnified against any and all claims arising out of job related injuries, 
       except those attributable to my sole negligence?"  We think not.

Id. at 1016. The court concluded:

       We hold that a contractor who seeks indemnity against any and all liability, 
       claims, judgments or demands, including demands arising from injuries or 
       death of the subcontractor indemnitor's employees, arising directly or 
       indirectly out of the indemnitor's obligations undertaken and that arise out 
       of the contract, save and except claims or litigation arising through the sole 
       negligence or sole wilful misconduct of contractor indemnitee is in sum and 
       substance the same idea as would be conveyed if the indemnitee contracted 
       to be indemnified against any and all liability including its own acts of 
       negligence (except of course its sole negligence . . .).

Id. at 1018 (citation omitted).

       In Neustrom v. Union Pacific Railroad Co., 156 F.3d 1057 (10th Cir. 1998), 

indemnitor Asplundh Tree Expert Company contracted to spray along indemnitee Union 

Pacific Railroad Company's lines.  The party's contract included an indemnity provision 

                                               17 

No. 83795-3

containing a sole negligence exception.  The court summarized applicable Kansas law, 

under which agreements to indemnify for the indemnitee's own negligence are disfavored 

and therefore must be expressed in "'clear and unequivocal language.'"  Id. at 1062.  

"'[B]road and seemingly all-inclusive language' is not sufficient to overcome the judicial 

disfavor of such agreements."  Id. at 1063 (internal quotation marks omitted) (quoting 

Zenda Grain & Supply Co. v. Farmland Indus., Inc., 20 Kan. App. 2d 728, 894 P.2d 881, 

887 (1995)).  In upholding the sole negligence exception, the court explained:

       Asplundh agreed to hold Union Pacific harmless "against and from any and 
       all liability, loss, damages, claims, demands, costs and expenses of 
       whatsoever nature" arising from injury or death to any person caused by the 
       spraying operations, with the exception of Union Pacific's "sole 
       negligence."  The "sole negligence" provision carves out from the otherwise 
       inclusive indemnification the lone circumstance where the indemnity clause 
       does not apply, and that is when the injury or death was caused solely by 
       Union Pacific's negligence.  This shows that the parties clearly focused on 
       negligence, including Union Pacific's negligence.  The "sole negligence" 
       phrase directly implies that all other kinds of negligence, e.g., joint 
       negligence, are included within the meaning of the phrase "any and all 
       liability, loss, damages, claims, demands, costs and expenses of whatsoever 
       nature."  Any other reading would make the "sole negligence" language of 
       the clause meaningless and superfluous.

Id. at 1063-64.

       In Gulfstream Park Racing Ass'n, Inc. v. Gold Spur Stable, Inc., 820 So. 2d 957, 

961-62 (Fla. Dist. Ct. App. 2002), a stall agreement provided that a race horse trainer 

agreed to indemnify a track association "from any claims, losses, liabilities or demands 

. . . resulting from or arising directly or indirectly from the acts or omissions of Trainer."  

The agreement additionally provided that "[t]his indemnification provision shall not be 

                                               18 

No. 83795-3

effective as to any loss attributable [sic] exclusively to the negligence or willful act or 

omission of" the track association.  The trainer argued that "because there is no language 

in the Stall Agreement specifically stating that he would indemnify [the association] for 

acts of [the association's] own negligence, the agreement [fell] short of the 'clear and 

unequivocal' standard" that applied.  Id. at 962.

       The court disagreed, holding that "the Stall Agreement clearly and unequivocally 

provides that [the trainer] must indemnify [the association] except where it is determined 

that Gulfstream was exclusively or solely negligent."  Id. at 963; see also Mitchell Maint. 

Sys., a Div. of Lift-A-Loft Corp. v. State Dep't of Transp., 442 So. 2d 276, 277-78 (Fla. 

App. 1983) (a contractor agreed to "'indemnify . . . [the department of transportation] . . . 

from any claim, loss, damage . . . except . . . for damages arising out of injury or damage 

to persons or property directly caused or resulting from the sole negligence of [the 

department]'" (quoting contract); provision held to be "clear and unequivocal"); United 

Parcel Serv. of Am., Inc. v. Enforcement Sec. Corp., 525 So. 2d 424 (Fla. Dist. Ct. App. 
1987).5

       In Shell Oil Co. v. Brinkerhoff-Signal Drilling Co., 658 P.2d 1187, 1189 (Utah 

1983), the court stated that "[a]greements by which one person obtains another person's 

agreement to indemnify him from the results of his own negligence are not favorites of 

5 All of these cases were decided by the Florida Court of Appeals, Fourth District.  The dissent 
cites an earlier case from the same district, Leadership Housing System of Florida, Inc. v. T&S 
Electric, Inc., 384 So. 2d 733 (Fla. Dist. Ct. App. 1980), in an attempt to show that Florida takes 
the same approach as the dissent urges.  Dissent at 6. But given three subsequent cases to the 
contrary, Leadership Housing does not state the present view of the Fourth District.
                                               19 

No. 83795-3

the law . . . and are strictly construed against the indemnitee."  (Citation omitted.)  

"Nevertheless, we have frequently adhered to the majority rule that where the intention to 

indemnify a person from losses attributable to his own negligence is 'clearly and 

unequivocally expressed' in the contract language, an indemnity agreement will be 

upheld."  Id.  The court held that the indemnity agreement in a contract between a drilling 

contractor and Shell Oil Company met this requirement, where the contractor agreed 

       to protect, indemnify and save Operator [Shell], its employees, and agents 
       harmless from and against all claims, demands and causes of action of 
       every kind and character arising . . . on account of bodily injuries, death or 
       damage to property arising out of or in connection with the performance of 
       this agreement, except where such injury, death or damage has resulted 
       from the sole negligence of Operator, without negligence or willful act on 
       the part of Contractor, its agents, servants, employees, or subcontractors.

Id. at 1189 n.1 (emphasis added) (first alteration in original).

       In New York, the high court recently stated that "[c]ourts will construe a contract 

to provide indemnity to a party for its own negligence only where the contractual 

language evinces an 'unmistakable intent' to indemnify. . . .  As we have explained:  

'When a party is under no legal duty to indemnify, a contract assuming that obligation 

must be strictly construed.'"  Great N. Ins. Co. v. Interior Constr. Corp., 7 N.Y.3d 412, 

417, 857 N.E.2d 60, 823 N.Y.S.2d 765 (2006) (citation omitted) (quoting Hooper 

Assocs., Ltd. v. AGS Computers, Inc., 74 N.Y.2d 487, 491-92, 549 N.Y.S.2d 365, 548 

N.E.2d 903 (1989)).  The court held that an indemnification clause in a lease that 

required indemnification for any accident occurring in the leased premises "'unless 

caused solely by the [the landlord-indemnitee's] negligence'" unambiguously and 

                                               20 

No. 83795-3

unmistakably provided indemnification for the indemnitee's negligence.  Id.

       Similarly, Louisiana courts hold that agreements must be clear and explicit to 

establish intent to indemnify the indemnitee for its own negligence, and conclude that a 

sole negligence exception can establish such intent.  In fact, in DeWoody v. Citgo

Petroleum Corp., 595 So. 2d 395, 397 (La. Ct. App. 1992), the court said that "[i]ndeed, 

it is the presence of" "the one narrow exception where the indemnitee's negligence is 

found to be the sole cause of the accident" "that convinces us the parties intended that 

indemnity would be owed upon a finding of concurrent fault of the indemnitee or if the 

indemnitee is exonerated from fault."

       Other courts have also held that under a strict standard of review, a proviso that 

states that indemnification will not be triggered when losses are the result of the 

indemnitee's sole negligence clearly and unequivocally establishes the parties' intent to 

indemnify in the event of the indemnitee's negligence that is not sole negligence causing 

the losses.  See, e.g., Fed. Ins. Co. v. Gulf Ins. Co., 162 S.W.3d 160, 162 (Mo. Ct. App. 

2005) (intent to indemnify for the indemnitee's own negligence "must be expressed in 

clear and unequivocal terms"; agreement to indemnify for liability or losses "'arising out 

of, resulting from, or in consequence of the performance of the work under this Contract 

. . . but excluding Claims caused by the sole act or omission (whether negligent or 

otherwise) of Indemnit[e]es'" (alterations in original) (quoting contract); the indemnity 

clause clearly and unequivocally requires [indemnitor] to indemnify [indemnitee], unless 

the loss or liability was caused by [indemnitee's] sole negligence"); Babcock & Wilcox 

                                               21 

No. 83795-3

Co. v. Fischbach & Moore, Inc., 218 Pa. Super. 324, 324-26, 280 A.2d 582 (1971) (

"'[t]his agreement shall not include injuries or damage due wholly to the negligence'" of 

the indemnitee; language is "explicit in its terms" and "clearly and unequivocally shows 

the intention of the parties" that the indemnitee be indemnified for "claims from accidents 

for which [the indemnitee] was partly at fault, but not to do so for claims arising wholly 

from the negligence of [the indemnitee]").

       Other cases involving indemnity agreements with sole negligence exceptions are 

aligned with the majority rule, while not expressly endorsing the "clear and unequivocal" 

standard.  E.g., Beloit Power Sys., Inc. v. Hess Oil Virgin Islands Corp., 757 F.2d 1431 

(3d Cir. 1985) (Beloit II); E. Airlines, Inc. v. Ins. Co. of N. Am., 758 F.2d 132 (3d Cir. 

1985); Meyers v. Texaco Ref. & Mktg., Inc., 205 Ga. App. 292, 422 S.E.2d 216 (1992).  

The court in Eastern Airlines explained that it had "concluded that there is no public 

policy that prevents judicial enforcement of the parties' agreement to shift the cost of or 

liability for the consequences of one's own negligence, provided it is done clearly and 

unambiguously.  Beloit [Power Sys., Inc. v. Hess Oil Virgin Islands Corp.], 757 F.2d 

[1427,] 1430 [(3d Cir. 1985) (Beloit I)] (permitting indemnification for the indemnitee's

own negligence)."  E. Airlines, 758 F.2d at 135 (emphasis added).  Similarly, the court in 

Beloit II said that the indemnity clause at issue there "unambiguously excuses the 

[indemnitor] from the indemnity obligation only if [the indemnitee] is the sole negligent 

party."  Beloit II, 757 F.2d at 1433.

       In Meyers, 205 Ga. App. at 296-97, an indemnification agreement between the 

                                               22 

No. 83795-3

owner and operator of a automobile service station provided that the operator-indemnitor

agreed to indemnify the owner "from and against 'each and every claim . . . on account of 

personal injury . . . arising out of . . . performance of the services hereunder, except such 

as . . . resulted from [the owner-indemnitee's] sole negligence.'"  (Emphasis omitted.  

Most alterations in original.) A customer was injured when she slipped and fell at the 

station and she sued the owner and operator.  The jury found the owner and operator 

jointly negligent, and the owner sought indemnification under the contract.

       Under Georgia case law, the court was required to scrutinize the contract closely 

to discover whether the contract revealed intent to indemnify for the indemnitee's own 

negligence, with every presumption against such intention.  Id. at 297, 298. The court 

concluded that the language of the indemnification provision was clear.  "If this personal 

injury had resulted from [the owner-indemnitee's] sole negligence, [the operator] would 

not be liable for indemnification."  Id. at 296. "[I]n order to construe this provision as 

having any reason for being or any meaning at all, an agreement to indemnify [the owner-

indemnitee] as to claims arising out of joint negligence must be directly deduced."  Id. at 
297.6

       We turn to concerns expressed in the dissent.  The dissent maintains that 

regardless of what the rule is in other jurisdictions, we should follow our own rule.  

6 In Meyers, the indemnity agreement provided that Texas law would apply, unless it contravened 
Georgia public policy.  The court rejected the Texas "express negligence doctrine" because it was 
contrary to Georgia public policy.  The court concluded that the plain language of the contract 
provided indemnity in the event of joint negligence and application of the "express negligence 
doctrine" would render the sole negligence exception in the contract "nonsense" and without 
effect.  Id. at 297.
                                               23 

No. 83795-3

Dissent at 1.7 But we do so here. The dissent's characterization of Jones and subsequent 

cases as stating an extremely narrow rule is simply not borne out by the language in 

McDowell and Northwest Airlines that was found to indemnify against the indemnitee's

own negligence.  In Northwest Airlines, the reference to the indemnitee's negligence was 

to indemnify for losses "'whether or not caused by the Lessor's negligence.'" 104 Wn.2d 

at 153 (emphasis omitted) (quoting agreement).  In McDowell, it was to liability caused 

by "'an act or omission, negligent or otherwise, by'" the indemnitee.  McDowell, 105 

Wn.2d at 49-50 (quoting agreement). In each case, the indemnity provision explicitly 

identified losses due to (a) "negligence" of (b) the named indemnitee, and stated that such 

losses gave rise to the duty to indemnify.  Here, the reference is to losses "'except only 

for those losses resulting solely from the negligence'" of the indemnitee.  CP at 14, 152

(quoting section 3.54 of Request for Proposal #19-01 (Sept. 13, 2001).

       There is a specific reference to the negligence of the named indemnitee in each of 

the three cases.  In each case, the only possible reading of the contractual language is that 

the duty to indemnify applies to losses resulting from the indemnitee's own negligence.  

In the present case, the agreement says that only losses resulting solely from First 

Transit's negligence do not give rise to the duty to indemnify.  With this exception, the 

contract explicitly explains when the negligence of the indemnitee will trigger the duty to 

7 Although the dissent criticizes this opinion for considering how the "clear and unequivocal" 
standard is applied in other jurisdictions to indemnity agreements when a sole negligence 
exception is included in the agreement, ironically, the dissent cites only Texas cases and a federal 
case applying Texas law for the proposition that "Washington adheres to the view" that an 
indemnity contract cannot tell what must be indemnified with reference to what is not indemnified.  
Dissent at 5.
                                               24 

No. 83795-3

indemnify.

       Contrary to the entire tone of the dissent, we did not adopt the "clear and 

unequivocal" rule because these agreements are contrary to public policy -- in fact, we 

have directly held they are not contrary to public policy -- but rather because we want 

assurance the parties intended to indemnify for the indemnitee's negligence.  The most 

important concern is the parties' clearly expressed intent.  And, unlike the cases 

preceding Jones, which would have allowed indemnification for the indemnitee without 

any mention of negligence of the indemnitee at all, here the agreement expressly 

addresses the indemnitee's negligence and tells us that provided that the indemnitee's

negligence is not the sole cause of the injury, and provided that the other conditions of 

the agreement are met, the duty to indemnify will arise.  The dissent is thus mistaken 

when it asserts that we have returned to pre-Jones standards.

       The dissent is also mistaken about the proper analysis where indemnification for 

the indemnitee's own negligence is concerned.  Selecting statements from Jones, 

Northwest Airlines, and McDowell, the dissent claims that we have joined a "trend" 

toward a "narrower application of the 'clear and unequivocal' rule," citing California, 

Florida, and Texas case law.  Dissent at 6-7.  First, the authority cited by the dissent to 

show a trend toward a narrower rule does not support the claim.  The cited California and 

Florida cases are discussed in footnotes in this opinion, which show that the dissent is 

simply wrong about them; these cases do not support the dissent's characterization of 

these states' law.  As to Texas, the dissent says that in Ethyl Corp. v. Daniel Construction

                                               25 

No. 83795-3

Co., 725 S.W.2d 705 (Tex.1987), the Texas Supreme Court "shifted to a stricter version 

of the 'clear and unequivocal' rule that it calls the 'express negligence doctrine.'"  

Dissent at 6-7.  This is incorrect.  The Texas Supreme Court explicitly said in a 

subsequent case:  "In Ethyl Corporation v. Daniel Construction Co., 725 S.W.2d 705 

(Tex.1987) . . . we abandoned the 'clear and unequivocal' rule in favor of the 'express 

negligence' rule."  Singleton v. Crown Cent. Petroleum Corp., 729 S.W.2d 690, 691 
(Tex. 1987) (emphasis added).8

       More importantly, we have not joined any such trend.  The dissent reads our cases 

as establishing an extremely restrictive "clear and unequivocal" standard.  But what has 

actually happened is that we have said that "clear and unequivocal" does not mean 

general, broad, inclusive language comparable to the rejected language in Jones, i.e., 

"arising out of, in connection with, or incident to."  That kind of language does not tell a 

court "clearly and unequivocally" that the parties' considered the effect of the negligence

of the indemnitee and intended to indemnify for the indemnitee's own negligence.

       In Northwest Airlines, we noted that this court initially found intent to indemnify 

for losses due to the negligence of the indemnitee in language where "the term negligence

itself need not actually be used."  Nw. Airlines, 104 Wn.2d at 155.  We said that we now 

require "more specific language be used to evidence a clear and unequivocal to indemnify 

8 The Texas court's new standard has been called a "stricter than strict" standard.  3 Philip L. 
Bruner & Patrick J. O'Connor, Jr., Construction Law § 10.13 (2002) (chapter 10, titled 
Indemnity and Contribution, includes § 10.13 "Interpretation of indemnity language -- Stricter 
than strict: Express negligence approach," which begins with the observation that Texas 
"found the standard strict construction test to be wanting" and thus changed course to require 
"magic language" before the indemnification obligation is triggered.
                                               26 

No. 83795-3

the indemnitee's own negligence."  Id.  We cited a number of cases from jurisdictions 

following the "more specific language" requirement.  Among them are American 

Automobile Insurance Co. v. Seaboard Surety Co., 155 Cal. App. 2d 192, 197-98, 318 

P.2d 84 (1957), where the court required "words or terms clearly and explicitly 

expressing that this was the intent of the parties; and [said] that seemingly broad language 

will not be isolated from its context and will be read with due regard to the maxim of 

strict construction;" Scarboro Enterprises, Inc. v. Hirsh, 119 Ga. App. 866, 870, 169 

S.E.2d 182 (1969), where the court referred to "express language;" Laskowski v. 

Manning, 325 Mass. 393, 399, 91 N.E.2d 231 (1950), where the court said that "[s]uch

an intent must unequivocally appear, and words of general import are not sufficient;" and

Commerce Trust Co. v. Katz Drug Co., 552 S.W.2d 323, 326 (Mo. Ct. App. 1977), where 

the court said that "the intention to assume that liability must be unequivocally expressed 

in the agreement" and noted that the agreement before it did "not allude to indemnity 

from [the indemnitee's] own negligence."  In none of these cases did the court require 

"magic words" to show the intent to indemnify for the indemnitee's own negligence.  

Rather, what is "require[d] is that, for an indemnitor to be found responsible for the 

indemnitee's own negligence, the agreement must be clearly spelled out."  Nw. Airlines, 

104 Wn.2d at 158.

       In rejecting the premise that such agreements are against public policy, the court in 

Northwest Airlines quoted the United States Supreme Court:  "'There is no rule of public 

policy which denies effect to their [the contracting parties'] expressed intention, but, on 

                                               27 

No. 83795-3

the contrary, as the matter lies within the range of permissible agreement, the highest 

public policy is found in the enforcement of the contract which was actually made.'"  Nw. 

Airlines, 104 Wn.2d at 158-59 (emphasis added) (alteration in original) (internal 

quotation marks omitted) (quoting Santa Fe & P. R. Co. v. Grant Bros. Const. Co., 228 

U.S. 177, 188, 33 S. Ct. 474, 57 L. Ed. 787 (1913)).  Plainly, the court in Northwest

Airlines favored construction of the indemnity agreement to carry out the parties' intent, 

within the parameters of the "clear and unequivocal" standard.

       This same premise appears in McDowell.  There, the court explained:

       This court has long preferred to enforce indemnity agreements as executed 
       by the parties. . . .  We have established specific limits to the enforceability 
       of indemnity contracts to accommodate the statutory mandates of the 
       Industrial Insurance Act, RCW Title 51, . . . and of RCW 4.24.115. . . .  
       However, as we stated in [Nw. Airlines], the general rules that disfavor an 
       agreement to indemnify an indemnitee against its own negligence do not 
       render such a clause void or unenforceable as a matter of law. . . .  Instead, 
       . . . "the agreement must be clearly spelled out."  [Nw. Airlines], 104 Wn.2d 
       at 158. . . .  Parties rely on indemnity agreements for allocating the 
       responsibility to purchase insurance. . . .  Here, [the parties] clearly spelled 
       out their allocation of responsibilities.  It is not for this court to frustrate 
       such a planning device.
       . . . .
       "Contracts of indemnity . . . must receive a reasonable construction."

McDowell, 105 Wn.2d at 53-54 (citations omitted).

       The indemnity agreement here specifically references negligence of the indemnitee

and, reasonably construed, explicitly shows the parties' intent to indemnify for the 

indemnitee's negligence but not its sole negligence.  The agreement is not against public 

policy -- indeed, the parties may agree to indemnify even in the case of the indemnitee's

                                               28 

No. 83795-3

sole negligence.  These are commercial parties and nothing indicates any overreaching or

one-sided bargaining power.  We have no good reason not to enforce their agreement 

according to its terms.

       Finally, we comment briefly on the fact that First Transit itself was not negligent.  

This is no bar to enforcing the indemnification agreement.  The indemnity agreement 

clearly and unequivocally provides that First Transit agreed to indemnify losses in 

connection with the work performed under the contract as a result of Community 

Transit's negligence.  The agreement contains no language stating that the obligation to 

indemnify for losses resulting from the indemnitee's negligence is conditioned on the 

indemnitor also being negligent.  Parties have broad control over the provisions of their 

private contractual indemnity agreements.  See generally Redford v. City of Seattle, 94 

Wn.2d 198, 206-07, 615 P.2d 1285 (1980).  As noted, an indemnity agreement can be 

enforced that provides for indemnification even when losses result from the indemnitee's

own sole negligence, provided that the agreement clearly spells this out.  Nw. Airlines, 

104 Wn.2d at 158.  In such circumstances, the indemnitor plainly would not have to be 

negligent, demonstrating that the negligence of the indemnitor is not a prerequisite to 

indemnifying the indemnitee.

                                       CONCLUSION

       Provided that parties write their indemnity agreements in language that clearly and 

                                               29 

No. 83795-3

unequivocally shows intent to indemnify against claims and losses that result from the 

indemnitee's own negligence, their indemnity agreements will be enforceable.  There is 

no public policy in this state against indemnity agreements that indemnify for the 

indemnitee's own, even sole, negligence, unless the indemnity agreement falls under 

RCW 4.24.115, which is not relevant here.

       As we have previously held, and in accord with the decisions of numerous courts 

from other jurisdictions applying the same standard that we apply, a "sole negligence 

exception" in an indemnity agreement evidences the parties' intent that indemnity be 

triggered when claims and losses result from the negligence of the indemnitee unless 

solely from the negligence of the indemnitee. 

       The indemnity agreement at issue contains express language showing the clear 

intent of the parties to indemnify for losses resulting from the indemnitee's negligence, as 

long as the indemnitee is not solely negligent.  The agreement thus satisfies the "clear and 

unequivocal" standard required to enforce agreements to indemnify the indemnitee for its 

own negligence.  Accordingly, the Court of Appeals is reversed and this matter is 

remanded for further proceedings consistent with our decision.

                                               30 

No. 83795-3

AUTHOR:
        Chief Justice Barbara A. Madsen

WE CONCUR:
                                                         Justice James M. Johnson

        Justice Charles W. Johnson                       Gerry L. Alexander, Justice Pro Tem.

        Justice Susan Owens

                                               31