September 2011 - Parks & Recreation - 37

and employees, from all claims for
bodily injury or property damage arising from or out of the presence of
Permittee, including its employees,
agents, representatives, guests, and
others present because of the event or
Permittee's activities in or about Whites
Park, including the entrances, lobbies,
and exits thereof, the sidewalks,
streets, and approaches adjoining the
property or any portion of the property
used by Permittee or any of the above
stated.
Permittee shall be responsible for all
costs of defense, including reasonable
attorney's fees, and shall pay all fines
or recoveries against Rutland. Permittee acknowledges that as a condition
precedent to the execution of this
Agreement by Rutland, Permittee
agrees that it shall have no cause of action against Rutland for any damage,
injury, or loss to person or property,
from cause [sic] whatsoever, except
that which may result from the willful
acts of Rutland.

Contrary to what the trial court had
found to be the " plain language " of the
indemnity clause, VSA reiterated its argument on appeal to the state supreme court
that " the indemnity clause does not cover claims that stem from the City's negligence. " Specifically, VSA contended that
the language " claims ... arising from or
out of the presence of [VSA] " did not cover an accident that resulted because of
the City's negligence. In so doing, VSA
claimed " this language is ambiguous
and does not express a clear intent that
VSA would indemnify the City for such
injuries, as required by the circumstances surrounding the agreement's formation. " Instead, VSA argued " the purpose
of the indemnification clause is merely to
protect the City from claims by third parties caused by VSA's negligence and to
protect the City from claims VSA might
have against it caused by the City's willful acts. " The state supreme court rejected this argument.

Plain Language
In the opinion of the state supreme court,
" VSA cannot escape the plain language of
its agreement with the City. According to

	

the court, " [t]he intent of the parties could
not be more apparent-the City was willing to allow VSA to use Whites Park as
long as it was completely insulated from
liability due to VSA's use. " Moreover, the
court found the " agreement allocated responsibility to VSA to purchase insurance
to cover such losses. "
The indemnification clause allocated

responsibility to VSA for any negligence claims directly arising out of
VSA's event at the City's park and pool
facility. The clause is expressly limited
to causes of action arising out of the
presence of VSA and its guests or employees and agents. It extended to any
part of the park, not just the pool area,
including sidewalks, streets, and

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SEPTEMBER 2011

Parks & Recreation	 35
September 2011 - Parks & Recreation

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