             Case: 13-15945   Date Filed: 07/21/2014   Page: 1 of 13


                                                            [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-15945
                           Non-Argument Calendar
                         ________________________

                   D.C. Docket No. 4:12-cv-00598-RH-CAS


SNYDER’S-LANCE INC.,

                                                              Plaintiff-Appellant,

                                     versus

COWEN TRUCK LINE, INC.,

                                                             Defendant-Appellee.

                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        ________________________

                                (July 21, 2014)

Before HULL, MARCUS and ROSENBAUM, Circuit Judges.

PER CURIAM:

      In this diversity action, Snyder’s-Lance Inc. (“SLI”), appeals the district

court’s grant of summary judgment in favor of Cowen Truck Line, Inc. (“Cowen”),
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on SLI’s complaint seeking to recover from Cowen, pursuant to a contractual

indemnity provision, expenses incurred in defending and settling a wrongful-death

lawsuit. After a review of the record and the parties’ briefs, we affirm. 1

                                                I.

       SLI is a snack-food manufacturer. Through a transportation consultant—

Transportation Insight, LLC—SLI hired Cowen, a freight carrier, to haul goods

from an SLI plant in Ohio to an SLI plant in Florida. Pursuant to the agreement, a

Cowen driver, Charles Taft, delivered a load of SLI goods to the Florida plant.

After Mr. Taft backed his truck into the loading dock, he exited the truck on foot,

crossed a concrete barrier, and entered an adjoining loading dock, where,

apparently, Mr. Taft attempted to retrieve chrome lug nuts that had come off his

truck. While Mr. Taft was in the adjacent dock, he was run over and killed by an

SLI truck, which an SLI employee was backing into the dock at the time.

       Mr. Taft’s estate brought a wrongful-death action in Florida state court

against SLI and the SLI employee based solely on the negligence of SLI’s

employee. Faced with the lawsuit, SLI demanded that Cowen defend SLI pursuant

to an indemnity provision in the governing contract.                  Cowen denied that the

provision applied and refused to provide a defense.                    Later, SLI settled the


       1
          A motions panel of this Court granted SLI’s motion to amend the deficient allegations
of diversity of citizenship, and we have subject-matter jurisdiction to decide this appeal. See 28
U.S.C. §§ 1332, 1653.
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negligence action for $750,000.00, without admitting fault, and incurred

$473,064.95 in attorney’s fees and costs. SLI brought this action to recover these

amounts from Cowen under the indemnity provision.

       The contract at issue in this dispute is between Transportation Insight and

Cowen. Transportation Insight is a third-party freight provider who contracts with

various carriers, including Cowen, to provide freight services for its clients,

including SLI. No dispute exists over whether SLI may bring an action based on

the contract; it can.

       Therefore, we review two provisions of the contract relevant to this appeal.

First, the contract provides that North Carolina law governs. Second, the contract

contains an indemnity provision, which provides as follows:

       “CARRIER [Cowen] agrees to indemnify, defend and hold
       TRANSPORTATION INSIGHT and CLIENTS [SLI] their agents,
       employees, and principals harmless from and against any and all
       direct and indirect claims arising out of or resulting from
       transportation provided pursuant to this Agreement, including, but not
       limited to, claims for bodily injury, death, property damage, attorney
       fees, loss, damage or delay. CARRIER’S Liability under this
       indemnity and hold harmless provision shall be reduced in proportion
       to the degree of negligence, if any, of TRANSPORTATION
       INSIGHT or CLIENTS.”

       The district court granted summary judgment in favor of Cowen on two

alternative grounds. First, the court concluded that the indemnity provision did not

apply because the accident did not arise out of or result from transportation

provided pursuant to the contract. At the time of the incident, “Mr. Taft was not
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transporting goods or otherwise performing any duty under the contract.” Rather,

he had completed the transportation of the goods and was simply a pedestrian on

the premises when he was killed. Furthermore, the SLI truck and employee were

not engaged in transportation provided pursuant to the contract. The court found

that, “[o]n any proper reading of the indemnity clause,” Cowen did not agree to

indemnify SLI in these circumstances.

      Second, the district court determined that the indemnity provision did not

apply to a claim, like the wrongful-death action at issue, alleging only that the

indemnitee itself was negligent. Relying on Hill v. Carolina Freight Carriers

Corp., 71 S.E.2d 133 (N.C. 1952), the court stated that an indemnity provision

does not apply to such a claim unless the provision explicitly shows that the parties

intended to indemnify the indemnitee’s own negligence. The court found that

allowing SLI to recover in these circumstances was inconsistent with the purpose

of the provision:

      The clause’s primary purpose was to ensure that if Cowen’s acts
      caused an injury—if, for example, a Cowen driver caused a wreck
      while transporting goods under the contract—and if, as a result, the
      injured party sued not only Cowen but also Transportation Insight or
      [SLI], perhaps on the theory that Cowen was acting as their agent,
      then responsibility for defending the lawsuit and paying any loss
      would fall on Cowen, not on Transportation Insight or [SLI]. The
      clause plainly was not intended to allow [SLI] to escape responsibility
      for its own driver’s negligence in causing an accident. In short,
      Cowen undertook responsibility for its own trucking operation, but
      not for the operation by [SLI] of its own trucks.


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Furthermore, the district court found that the second sentence of the provision,

which limited Cowen’s liability in proportion to the negligence of Transportation

Insight or its clients, underscored that the purpose of the provision was to relieve

Transportation Insight and SLI from responsibility for damages caused by Cowen

but not to relieve them of responsibility for their own negligence.

      SLI moved for reconsideration of the judgment under Rule 59(e), Fed. R.

Civ. P., arguing, among other things, that the district court failed to distinguish

between an allegation of negligence and a finding of negligence. Instead, the court

simply relied on the allegations that SLI was negligent to determine SLI’s rights

under the indemnity provision. The district court denied the Rule 59(e) motion,

stating that the allegations themselves were not covered by the indemnity

provision, so Cowen had no duty to defend or to indemnify. SLI timely brought

this appeal.

      SLI argues that the district court erred in granting summary judgment in

favor of Cowen for two primary reasons. First, the court relied solely upon the

allegations of wrongdoing, rather than an actual finding of wrongdoing, to

determine SLI’s rights.     Second, the court erred in narrowly interpreting the

“arising out of or resulting from” clause in the contract, particularly when the court

made no findings of fact with respect to Mr. Taft’s actions at the time of the




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incident.   Finally, SLI argues that the court should have granted summary

judgment in its favor based on the plain language of the indemnity provision.

                                         II.

      We review a district court’s grant of summary judgment de novo. Holloman

v. Mail-Well Corp., 443 F.3d 832, 836 (11th Cir. 2006). Summary judgment is

appropriate when, viewing the evidence in the light most favorable to the

nonmoving party, “the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548,

2552, 91 L. Ed. 2d 265 (1986); Holloman, 443 F.3d at 836-37. Interpretation of a

contract is a question of law reviewed de novo. Tobin v. Mich. Mut. Ins. Co., 398

F.3d 1267, 1274 (11th Cir. 2005).

      Initially, we consider whether the wrongful-death action was a claim

“arising out of or resulting from transportation provided pursuant to [the]

Agreement.” Mr. Taft may have completed the transportation of SLI’s goods and

simply may have been on the premises as a pedestrian at the time that the accident

occurred. But the district court did not make any detailed factual findings with

respect to Mr. Taft’s actions at the time of the incident, so we instead resolve this

appeal on the district court’s alternative and sufficient ground for granting




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summary judgment: that the indemnity provision did not cover a claim alleging

only SLI’s negligence.

      A court’s “primary purpose in construing a contract of indemnity is to

ascertain and give effect to the intention of the parties, and the ordinary rules of

construction apply.” Schenkel & Shultz, Inc. v. Hermon F. Fox & Assocs., P.C.,

658 S.E.2d 918, 921 (N.C. 2008) (quotation omitted). An indemnity provision

must be appraised in relation to the contract as a whole. Id.

      A standard contract of indemnity “will be construed to cover all losses,

damages, and liabilities which reasonably appear to have been within the

contemplation of the parties.” Id. at 922 (quotation marks and citation omitted).

But exculpatory provisions, “whereby a party seeks to protect itself from liability

arising from its own negligence,” are strictly construed:

      Contracts which seek to exculpate one of the parties from liability for
      his own negligence are not favored by the law. Hence it is a universal
      rule that such exculpatory clause is strictly construed against the party
      asserting it. It will never be so construed as to exempt the indemnitee
      from liability for his own negligence or the negligence of his
      employees in the absence of explicit language clearly indicating that
      such was the intent of the parties.

Id. (quoting Hill, 71 S.E.2d at 137 (citations omitted)).

      SLI argues that Cowen is liable under the indemnity provision because

Cowen “unambiguously” agreed to defend SLI and its employees against “any and

all direct or indirect claims,” Cowen failed to provide such a defense and thereby


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caused SLI to incur the costs of defense and settlement, and SLI was not found to

be negligent.      According to SLI, this Court need not determine whether the

indemnity provision should be interpreted to provide indemnity for SLI against its

own negligence because the second sentence limiting Cowen’s liability resolves

the issue. Based on that sentence, SLI argues that Cowen “must defend SLI with

respect to the claim and then, if SLI is found to be at least partially negligent,

[Cowen’s] liability would be reduced proportionally.” The parties would “settle

up” after a determination of liability is made.

       We conclude that SLI is not entitled to recover under the indemnity

provision because its losses do not “reasonably appear to have been within the

contemplation of the parties.” Schenkel & Shultz, 658 S.E.2d at 922.

       In determining whether a party is obligated under a contract to tender a

defense to another party, “the facts as alleged in the complaint are to be taken as

true and compared to the language” of the contract. See Harleysville Mut. Ins. Co.

v. Buzz Off Insect Shield, L.L.C., 692 S.E.2d 605, 610-11 (N.C. 2010) (concerning

an insurer’s duties to defend and to indemnify); Waste Mgmt. of Carolinas, Inc. v.

Peerless Ins. Co., 340 S.E.2d 374, 377 (N.C. 1986) (concerning an insurer’s duty

to defend). 2     If the contract provides coverage for the facts as alleged, the


       2
          SLI asserts that case law concerning an insurer’s duty to defend or to indemnify
pursuant to an insurance contract is somehow inapposite to the instant situation, which also
involves a contractual obligation to defend and to indemnify. But SLI has offered no valid
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indemnitor has an obligation to defend. See Harleysville, 692 S.E.2d at 611. By

contrast, the duty to indemnify “is measured by the facts ultimately determined at

trial.” Id. at 610. In that sense, the duty to defend is broader than the duty to

indemnify. Id. at 610-11.

       The underlying wrongful-death claim for which SLI seeks reimbursement

was premised solely on the negligence of SLI and its employee. Therefore, in

order to determine whether Cowen had a duty to defend—in essence, whether the

claim on its face was covered by the indemnity provision—we must address

whether the indemnity provision can be construed so “as to exempt the indemnitee

from liability for his own negligence or the negligence of his employees.” See

Schenkel & Shultz, 658 S.E.2d at 922. Here, neither the indemnity provision nor

the contract as a whole explicitly indicates that the parties intended to indemnify

Transportation Insight or its clients from their own negligence, and SLI does not

contend that they do.

       Rather, if any explicit intent is found in the contract, it is that Cowen would

not be responsible for the indemnitees’ negligence, which the second sentence of

the indemnity provision makes clear. SLI reads this second sentence as somehow

expanding Cowen’s duty to defend until a determination of liability is made, but




reason for this distinction—and we find none apparent—particularly when the indemnity
provision at issue provides for both obligations.
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that is not a reasonable construction of the agreement, particularly in light of

established North Carolina law concerning strict construction of exculpatory

provisions. Accordingly, we cannot construe the indemnity provision to cover a

claim based on the negligence of SLI or its employees because there is no “explicit

language clearly indicating that such was the intent of the parties.” Id.

       Therefore, Cowen did not have an obligation to defend SLI against the

wrongful-death complaint because the claim, taken as true, was not covered by the

indemnity provision. See Harleysville, 692 S.E.2d at 611. Because no duty to

defend arose, no duty to indemnify exists, even if SLI ultimately settled without

admitting fault. 3 See, e.g., Trailer Bridge, Inc. v. Illinois Nat’l Ins. Co., 657 F.3d

1135, 1146 (11th Cir. 2011) (citing a case for the proposition that a “court’s

determination that the insurer has no duty to defend requires a finding that there is

no duty to indemnify”); Nat’l Cas. Co. v. McFatridge, 604 F.3d 335, 338 (7th Cir.

2010) (“If an insurer has no duty to defend, it has no duty to indemnify.”); Penn-

America Ins. Co. v. Coffey, 368 F.3d 409, 413 (4th Cir. 2004) (“Although an

insurer’s duty to indemnify will depend on resolution of facts alleged in the


       3
          We do not find the case of Stephens v. Chevron Oil Co., 517 F.2d 1123 (5th Cir. 1975),
to be controlling. First, Stephens was decided under Louisiana law, which is not at issue here.
Second, the Fifth Circuit later acknowledged that “the Stephens court overlooked controlling
Louisiana precedent” and that “post-Stephens decisions of the Louisiana courts” had reached
contrary results. Sullen v. Mo. Pac. R. Co., 750 F.2d 428, 433 (5th Cir. 1985). The Fifth
Circuit’s decision in Sullen supports the result we reach in this case. See Sullen, 750 F.2d at 433-
34 (holding that, since the underlying pleadings alleged only the negligence of the indemnitee,
the indemnitor had no duty to defend).
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complaint, no such factfinding is necessary if there is no duty to defend because the

allegations, even when taken as proved, would fall outside the policy’s

coverage.”).    Thus, the district court did not err in relying on allegations of

negligence rather than actual findings of negligence, because that was the

appropriate way to determine whether the underlying claim, on its face, was within

the scope of the indemnity provision.

      More generally, we conclude that SLI’s interpretation of the indemnity

provision is unreasonable in light of the contract as a whole. See Schenkel &

Shultz, 658 S.E.2d at 921-22. The contract generally provides that Cowen would

operate as a carrier on behalf of SLI, among others, for goods and services that SLI

needed transported, and SLI would have little to no control over events while the

goods were in Cowen’s trucks during transportation. Accordingly, we agree with

the district court that the “clause’s primary purpose was to ensure that if Cowen’s

acts caused an injury,” and as a result, the injured party sued not only Cowen but

SLI, “responsibility for defending the lawsuit and paying any loss would fall on

Cowen.” In a similar vein, we think that Cowen is correct when it states that the

provision was intended “to provide a defense/indemnity to SLI in those situations

in which SLI may have some joint and several liability or some technical or

derivative/vicarious liability.” The claim for which SLI seeks to recover does not

implicate these purposes.


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      For instance, SLI did not contend in the district court, and does not argue on

appeal, that Cowen is liable for the wrongful-death action due to any negligence on

Cowen’s part, or that SLI’s alleged fault is somehow derivative of Cowen’s fault.

For these reasons, the case of Bridgestone/Firestone, Inc. v. Ogden Plant

Maintenance Co. of North Carolina, 548 S.E.2d 807 (N.C. Ct. App. 2001), does

not support SLI’s position.       In Bridgestone, wrongful-death suits based on

negligence were brought against the plaintiff-indemnitee and the defendants-

indemnitors after an industrial accident resulting in two deaths. Id. at 809. The

plaintiff settled the claims of direct and active negligence against it during trial and

then sought indemnification from the defendants for the costs of settling the

claims, pursuant to contractual indemnity provisions. Id. at 809-10. The plaintiff

alleged that it could only have been liable based on some passive or derivative

fault. Id. at 811. The court found that the plaintiff could proceed with its action

because it was seeking indemnification for sums paid as a result of the defendant’s

negligence, so it was not attempting to hold the defendants liable for the plaintiff’s

own negligence. See id. at 810-12. Here, SLI is not seeking to hold Cowen liable

for any negligence on Cowen’s part, so Bridgestone does not support SLI’s

position in this case.




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                                        III.

      In short, we hold that SLI is not entitled to recover from Cowen the costs of

defending and settling the wrongful-death claim because the indemnity provision

did not expressly indicate the parties’ intent to indemnify the negligence of SLI or

its employees. Accordingly, we affirm the judgment of the district court.

      AFFIRMED.




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