The OHIO CASUALTY INSURANCE COMPANY, Plaintiff Counter Defendant Appellee, v. HOLCIM (US), INC., Edward J. Thierry, Jr., Dennis R. Odom, Defendants Counter Claimants Appellants, Patricia White, et al., Defendants, Industrial Services of Mobile, Inc., Counter Defendant Appellee.
This case returns to us after we certified two questions to the Supreme Court of Alabama regarding its law of indemnity. The Ohio Casualty Insurance Company v. Holcim (US), Inc. (“Holcim I”), 548 F.3d 1352, 1359 (11th Cir.2008). Now that we have received the answers, Holcim (US), Inc. v. The Ohio Casualty Insurance Company (“Alabama opinion”), --- So.3d ----, No. 1080223, 2009 WL 3805799 (Ala. Nov. 13, 2009), we reverse the district court's grant of summary judgment to the counter-defendants The Ohio Casualty Insurance Co. (“Ohio Casualty”) and Industrial Services of Mobile, Inc. (“ISOM”), and remand the case to the district court for further proceedings consistent with this opinion and our opinion in Holcim I.
QUESTIONS CERTIFIED
For the background to this case, we rely on our prior opinion in Holcim I, 548 F.3d at 1354-56. We concluded Holcim I by certifying these questions:
1. WHETHER, UNDER ALABAMA LAW, AN INDEMNITEE MAY ENFORCE AN INDEMNIFICATION PROVISION AND RECOVER DAMAGES FROM AN INDEMNITOR RESULTING FROM THE COMBINED OR CONCURRENT FAULT OR NEGLIGENCE OF THE INDEMNITEE AND INDEMNITOR?
2. WHETHER, UNDER ALABAMA LAW, A COURT MAY LOOK BEHIND (OR BEYOND) THE PLEADINGS (IN PARTICULAR, THE COMPLAINT) OF AN UNDERLYING TORT ACTION IN DETERMINING THE APPLICATION OF AN INDEMNIFICATION PROVISION BETWEEN AN INDEMNITOR AND INDEMNITEE?
The Supreme Court of Alabama answered the second question “yes.” Alabama op. at *6. It reworded the first question as follows and answered “yes” to the revised version:
1. WHETHER, UNDER ALABAMA LAW, AN INDEMNITEE MAY ENFORCE AN INDEMNIFICATION PROVISION CALLING FOR THE ALLOCATION OF AN OBLIGATION OR DAMAGES BASED ON THE RESPECTIVE FAULT OF THE INDEMNITEE AND INDEMNITOR?
Alabama op. at *5.
These answers allow us to complete our analysis from Holcim I, where we found that the contract language “to the extent ․ attributable ․ to [Holcim]” was ambiguous because it admitted of two “reasonably plausible” interpretations. Holcim I, 548 F.3d at 1357. Now we know that both those interpretations are cognizable under Alabama law.1 Therefore the ambiguity that we found earlier remains. Our conclusion that the contested language is ambiguous as a matter of law means that the facts now come into play. See, e.g., Alfa Life Ins. Corp. v. Johnson, 822 So.2d 400, 405 (Ala.2001) (“If the application of such rules [of contract construction] is not sufficient to resolve the ambiguity, factual issues arise ․”). This observation is underscored by the Supreme Court of Alabama's answer to the second certified question, that a court may look beyond the pleadings of the underlying tort when determining an indemnification agreement, as Holcim asked the district court to do in this case.
REVERSED AND REMANDED.
PER CURIAM: