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Click here for the full text of this decision FACTS:Randy Dalton traveled by plane to Dallas Fort Worth International Airport. Her arrived on Delta flight 1935. Because Dalton was a paraplegic, a male and female attendant arrived to move Dalton from his seat onto a narrow wheelchair (called an aisle chair) to get him off of the plane and onto the jet way. Once on the jet way, another male attendant began to transfer Dalton from the aisle chair to his own chair when the attendant dropped Dalton, injuring him. Delta and ARC Security Inc. had an agreement for ARC to provide certain “skycap” services for Delta, including wheelchair assistance for Delta passengers, though Delta sometimes used its own employees for such services. The agreement included an indemnification paragraph, the first sentence of which said that ARC would indemnify Delta against all claims against Delta that arise out of acts or omissions by ARC under the agreement. The second sentenced stated, “This section shall apply regardless of whether or not the damage, loss, or injury . . . arises out of . . . the negligence . . . of, or was caused in part by, a party indemnified hereunder,” meets the express negligence doctrine requirements.” On the day of Dalton’s injuries, the assignment sheet listed “John F.” and “Aftab” as being assigned to assist someone on flight 1935, but the individual was not named. Dalton sued Delta and ARC Security Inc. and two of ARC’s employees: John Frimpong and Aftab Munir, as well as John Doe 1, John Doe 2 and Jane Doe 3. He explained that if Frimpong and Munir were not the male attendants, then the Does 1 and 2 were, regardless of whether they were employed by ARC or Delta. Dalton alleged causes of action for negligence, breach of an implied warranty to safely transport Dalton, responsibility a to each defendant’s employees and agents, and gross negligence. In addition to generally denying the allegations against it, Delta sought indemnity from ARC. Dalton eventually non-suited ARC, and Delta won a jury trial on Dalton’s claims against Delta. Delta then pursued its indemnity claim against ARC to recover the costs of defending Dalton’s suit. The parties filed cross-motions for summary judgment. The trial court granted ARC’s motion and denied Delta’s, without giving reasons for either decision. HOLDING:Affirmed. Because Dalton sued both ARC and Delta, that is, if John Doe 1 and John Doe 2 were employees of either, both were sued solely for their alleged acts and omissions. The court notes that Delta was not alleged to be responsible for the acts or omissions of ARC, but rather its own acts or omissions. Even so, the court adds, if Delta could prove that, regardless of Dalton’s pleadings, the act or omission that Dalton alleged was caused by Delta employees was actually caused by ARC employees, then Delta would be entitled to indemnification from ARC. The court determines that Texas law applies in this case instead of Georgia law (the choice of law under the agreement) because the two laws are virtually the same and Delta agrees that the result would be the same under either. Delta asserts that summary judgment for ARC was improper if the trial court’s grant was based on the conclusion that Delta had presented insufficient evidence that it was sued due to the acts or omissions of ARC. There is more than a scintilla of evidence that it had been sued because of ARC’s actions, Delta continues, through the schedule assignment sheet for that day listing “John F” and “Aftab” as assisting Dalton. The court points out, however, that the assignment sheet does not assign “John F” and “Aftab” to assist Dalton. They were to assist someone on flight 1935, but that someone was not identified. Regardless of whether this evidence by itself is more than a scintilla of evidence that ARC employees were involved in Dalton’s incident, ARC conclusively proved that its employees were not involved and that it was quite possible, pursuant to the agreement, that a Delta employee had been the one trying to assist Dalton. For instance, Dalton described the attendants as wearing dark blue coveralls, but ARC established that its employees where shirts, ties and slacks. Because ARC established that its employees were not involved, Delta could not have been sued for the actions of ARC. Instead, Delta was sued for its own acts or omissions. On this point, Delta insists that the agreement covers that situation as well, that is, the agreement satisfies the express negligence test that ARC agreed to indemnify Delta for Delta’s negligence. For support, Delta cites the second sentence of the agreement. The court points out that the second sentence is limited by the first sentence, which defines the indemnity obligation. The second sentence defines the obligation’s parameters. The first sentence says that RC will indemnify Delta against all claims against Delta that arise out of acts or omissions by ARC, while the second sentence says that this indemnification applies notwithstanding the negligence of a party indemnified under it (which is Delta). This means that ARC would indemnify Delta for ARC’s negligence, even if Delta were also negligent. It does not mean, however, that ARC would indemnify for Delta’s negligence by itself. OPINION:McCoy, J.; Livingston, Gardner and McCoy, JJ. CONCURRENCE:Gardner, J. “I agree with the majority’s result. But I respectfully disagree with its interpretation of the indemnity agreement. The majority adds terms that do not exist on the face of the agreement, that are unnecessary to resolve this appeal, and that could result in unintended consequences beyond the facts of this case.” The concurrence believes that the express negligence test is met here through the second sentence to the agreement. “The majority nonetheless reaches the right result. While I would hold that the agreement, itself, passes the express negligence test, ARC’s indemnity obligation would still only be triggered by allegations in the underlying suit that the claimed injuries arose out of performance or nonperformance of ARC’s services under the contract.”

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