February 1, 2018, Decided

Record No. 170130

DOMINION NUCLEAR CONNECTICUT, Inc., Appellant,

v.

SECURITAS SECURITY SERVICES USA, Incorporated, Appellee.

Judges: JUSTICE KELSEY, with whom CHIEF JUSTICE LEMONS and JUSTICE GOODWYN join, dissenting.

Opinion

Resolving a contract dispute between Dominion Nuclear Connecticut, Inc. ("Dominion") and Securitas Security Services USA, Incorporated ("Securitas"), the circuit court held that a contractual indemnity provision did not require Securitas to defend and indemnify Dominion in a personal injury suit filed against Dominion by a Securitas employee. Dominion appeals, arguing that the circuit court misread the disputed indemnity provision and that, properly read, this provision requires Securitas to defend and perhaps ultimately indemnify Dominion depending on the resolution of the personal injury suit. We agree and reverse.

I.

Jennifer Brandenburg, a Securitas employee, allegedly slipped and fell at Dominion's power plant in Waterford, Connecticut. Brandenburg was performing security services at the plant pursuant to a service contract between Dominion and Securitas. In a Connecticut court, she filed a personal injury suit against Dominion alleging negligence. Dominion responded to the complaint by denying its negligence and asserting that Brandenburg was "comparatively responsible and/or at fault for the accident." J.A. at 95. Dominion also sent a letter to Securitas demanding that Securitas defend and indemnify Dominion against any liability that Dominion may have to Brandenburg.

When Securitas refused the demand, Dominion filed suit against Securitas in Virginia pursuant to the forum-selection clause of the service contract, see id. at 83, alleging a breach of the indemnity provision of the service contract, which states:

To the extent arising from the negligence, gross negligence, or willful misconduct of [Securitas] . . . or [employees of Securitas], [Securitas] agrees to indemnify, defend, and hold harmless [Dominion], [Dominion's] Affiliates (defined below), and each of their respective directors, officers, employees, contractors, and agents (each an "Indemnitee") from and against any and all claims, demands, lawsuits, or other proceedings brought or threatened by any party, including but not limited to an Indemnitee, [Securitas], . . . and [employees of Securitas] (each, a "Claim"), and to pay all of each Indemnitee's costs in connection with any Claim, including but not limited to, any judgment, amounts paid in settlement, fines, penalties, forfeitures, and expenses (including reasonable attorneys' fees through final appeal), whether at law, in equity, or administrative in nature, in any manner arising out of or in connection with: (a) this Agreement; (b) [Securitas's] breach of this Agreement; (c) personal injury or death; (d) property damage; or (e) violation of law. [Securitas] will not be liable under this Indemnity Article for any injuries, deaths, or damage to the extent that they are caused by an Indemnitee's gross negligence or willful misconduct.

Id. at 124. Dominion filed a motion for partial summary judgment arguing that the plain meaning of the indemnity provision required Securitas to defend Dominion and, depending on the outcome, to indemnify Dominion for any ultimate liability. Securitas filed a cross-motion for summary judgment contending that the provision could not apply to the Brandenburg complaint because it did not allege that Dominion was liable to any extent for the negligence of Securitas or its employees. The circuit court agreed with Securitas and dismissed Dominion's suit.

II.

On appeal, Dominion argues that the circuit court failed to enforce the broad language of the indemnity provision, which applies to "any and all claims, demands, lawsuits, or other proceedings brought or threatened by any party, including but not limited to an Indemnitee, [Securitas], . . . and [employees of Securitas] . . . in any manner arising out of or in connection with . . , personal injury or death." Id. For this broad provision to apply, Dominion contends, there is only one textual requirement: The duty to defend and indemnify applies only "[t]o the extent" that a claim "aris[es] from the negligence, gross negligence, or willful misconduct of Securitas or its employees. Id. Thus, Securitas's duties exist whether Dominion was negligent or not, so long as the claim arises in part or to any extent from the negligence, gross negligence, or willful misconduct of Securitas or its employees. This conclusion is bolstered by the second sentence of the indemnity provision, which provides the only other limiting principle: "[Securitas] will not be liable under this Indemnity Article for any injuries, deaths, or damage to the extent that they are caused by an Indemnitee's gross negligence or willful misconduct." Id. The presence of this second sentence, according to Dominion, "proves that Claims arising out of Dominion's conduct are within the risks covered by the first sentence" and "that Claims arising out of Dominion's ordinary negligence remain within the scope of covered risks." Appellant's Br. at 15-16. Otherwise, this exclusion for Dominion's gross negligence or willful misconduct would be unnecessary. See id. at 15.

We agree with Dominion's interpretation of the indemnity provision and find that the Brandenburg complaint falls within its scope. Brandenburg's personal injury allegations against Dominion constitute a claim within the scope of the first sentence of the provision and do not implicate the "gross negligence or willful misconduct" exclusion, J.A. at 124, set forth in the second sentence. The complaint satisfies the "[t]o the extent" qualification of the first sentence, id., because Dominion responded to the complaint with the assertion that Brandenburg was comparatively at fault for the accident. Connecticut is a modified-comparative-fault jurisdiction, meaning that Brandenburg cannot recover if her alleged negligence exceeds that of Dominion, and, if it does not, she can only recover for Dominion's percentage of fault. In both of these scenarios, however, Brandenburg's personal injury suit implicates her negligence as a Securitas employee and thus triggers Securitas's duty to defend and, depending on the outcome of the suit, to indemnify Dominion.

We do not rule on Securitas's ultimate duty to indemnify because, as Dominion's opening brief on appeal states, "Dominion did not (and does not) seek summary judgment establishing that Securitas must, in fact, indemnify Dominion. The duty to indemnify depends, in part, on Dominion's payment of a judgment, which will not occur until the Connecticut case is resolved." Appellant's Br. at 6 n.1; see also J.A. at 48 n.2, 139. Dominion also conceded in the circuit court that the potential duty to indemnify exists "because there are scenarios under which Securitas would be liable for a judgment based on the facts alleged in the Brandenburg Complaint; namely, a verdict where Brandenburg shares liability." J.A. at 44; see also id. at 53, 55, 150-51, 181. Dominion maintains this position on appeal. See Appellant's Br. at 1; Reply Br. at 9-10.

That said, we disagree with Securitas that the phrase "No the extent," J.A. at 124, functions as a proportional limitation on its duty to defend or indemnify Dominion inasmuch as any duty of Securitas to indemnify Dominion will be for the entire amount of the judgment entered against Dominion. As Dominion is the only defendant in the Connecticut litigation, the only judgment award entered in that case will be against Dominion, and the entire amount awarded will represent Dominion's negligence. See supra note 3 (describing Connecticut's modified-comparative-fault rule in which the court merely subtracts that percentage of the award reflecting the plaintiff's negligence from the judgment against the defendant). Therefore, the circuit court also erred in not concluding that "Securitas's indemnity obligation, should it be established, must be for the entire amount of Dominion's liability." J.A. at 139.

For these reasons, we reverse the circuit court's entry of summary judgment in favor of Securitas and remand the case for further proceedings.

This order shall be certified to the Circuit Court of Chesterfield County.