242 F.3d 1035 (11th Cir. 2001)
ROYAL INSURANCE COMPANY OF AMERICA, a.k.a. R.E. Grills Construction Co., Inc., Plaintiff-Appellant,v.WHITAKER CONTRACTING CORP., Defendant-Appellee.
No. 99-12095D. C. Docket No. 98-01704-CV-BU-S
UNITED STATES COURT OF APPEALSELEVENTH CIRCUIT
Feb. 23, 2001March 9, 2001

Appeal from the United States District Court for the Northern District of Alabama
Before BIRCH, BARKETT and ALARCON*, Circuit Judges.
BIRCH, Circuit Judge:


1
This appeal presents the issue of whether an indemnitor must indemnify the  indemnitee when the underlying cause of action involves a nondelegable duty  under state law to which the indemnitee is subject. Specifically, this case  concerns whether a paving subcontractor should indemnify the insurer of the  general contractor with the state for highway work when a motorist died because  of obstructive barricades at the work site. The district judge granted summary  judgment to the subcontractor. Because we do not consider present Alabama law to  have resolved this precise issue, we certify the question to the Alabama Supreme  Court.

I. BACKGROUND

2
In November, 1993, R.E. Grills Construction Company, Inc. ("Grills") and the  State of Alabama entered into a contract for widening, including grading,  draining, and paving, 6.457 miles on Alabama Highway 75 in Blount County,  Alabama. This contract incorporated portions of the Alabama Highway Department  Standard Specifications for Highway Construction, 1992 Edition ("Standard  Specifications"), which made Grills, as general or prime contractor, responsible  for placement and maintenance of construction warning signs, barricades, and  traffic control devices to insure public safety. These Standard Specifications  require that the general contractor, "shall assume full responsibility for the  continuous and expeditious maintenance of all construction warning signs,  barricades and other traffic control devices" and state that the general  contractor "is not relieved of his responsibility to continuously review and  maintain all traffic handling measures and insure himself that adequate  provisions have been made for the safety of the public and workmen. Construction  signs and other traffic control devices specified by plan details are considered  the necessary requirements for satisfactory traffic control."1 R1- 1-3 (quoting  Standard Specifications at  740.03(c) and (d), which were incorporated in the  contract between Grills and Alabama for the subject road work).


3
On July 7, 1994, Grills entered into a subcontract with defendant-appellee,  Whitaker Contracting Corporation ("Whitaker") for the paving of the portion of  highway under the work contract between Grills and Alabama. This Grills form  subcontract contained an indemnity agreement by Whitaker regarding the work that  it performed for Grills. That agreement purported "to indemnify and . . .  exonerate" the contractor, Grills, "from all liability, claims and demands for  bodily injury and property damage arising out of the Work undertaken by the  Subcontractor . . . whether or not" such damage resulted "in whole or in part"  from "conditions, acts, or omissions done or permitted by the Contractor."  R1-15-Exh. E at 2 (quoting subcontract indemnity agreement between Grills and  Whitaker).2


4
On April 11, 1996, Rhonda K. Chase was driving south on Highway 75 in Blount  County on the portion of the roadway that was undergoing widening construction  work pursuant to the contract between Grills and Alabama and the paving  subcontract between Grills and Whitaker. At the intersection of Highway 75 and  County Road 1, Vicky Hood Washburn proceeded onto the highway in Chase's path.  Chase's vehicle collided into Washburn's vehicle; Chase subsequently died from  the injuries that she sustained. At her deposition, Washburn testified that the  barricades, barrels, and equipment on the construction site being paved obscured  her ability to see north on Highway 75 and, thus, were contributing causes of  the accident.3 R1-15-Exh. I at 18, 28-29, 30-31, 35.


5
The administratrix of Chase's estate sued Whitaker, Washburn, and State Farm  Mutual Automobile Insurance Company, Washburn's insurance carrier, in state  court. The amended complaint added a negligence claim against Grills and alleged  that Grills breached its duty of ordinary care in repairing and paving the  intersection of Highway 75 and County Road 1 by failing to provide adequate  barricades, signs, and safety devices to protect the public. The ensuing  discovery revealed that the barricades that obstructed Washburn's view were  traffic control devices placed and maintained by Grills under the supervision of  the Alabama Department of Transportation. After initial placement on October 16,  1995, the barricades were maintained at least thirteen feet from the traveled  lanes of Highway 75 until the date of the accident, when they were moved within  three to five feet of the traveled lanes of Highway 75. Whitaker performed  paving work at the subject intersection on the same day following the accident,  and state inspectors moved the barricades away from the involved traveled lanes  of Highway 75 immediately after arriving at the accident scene. There is no  direct evidence in the record that Whitaker personnel moved the barricades.4


6
Prior to trial, the administratrix settled her claim against Whitaker for  $250,000 and her claim against Grills for $400,000, an amount paid by  plaintiff-appellant Royal Insurance Company of America ("Royal") under the terms  of its general liability insurance policy with Grills. Relying on Whitaker's  indemnity agreement in its subcontract with Grills, Royal then filed the  underlying indemnity case in federal court under 28 U.S.C.  1332, diversity  jurisdiction. In the course of that litigation, David B. Nooney, Vice President  of Grills with twenty-five years of experience with road construction contracts,  testified at his deposition that Grills would be responsible under its contract  with Alabama, even if an accident or injury were caused by a subcontractor.5  Similarly, George S. Mahon, Jr., the Royal agent who handled the state  litigation and settlement in this case and who had twenty years of experience in  handling insurance claims, testified at his deposition that the ultimate  liability that Grills had under its contract with Alabama was the reason for  settlement with Chase's estate.6


7
Whitaker moved for summary judgment and argued that Grills was ultimately liable  under its contract with Alabama for the roadwork. Finding no material facts at  issue, the district judge granted Whitaker summary judgment as to its liability  under the indemnity agreement. In this appeal, Royal argues that the district  judge failed to apply state indemnity law.

II. DISCUSSION

8
We review a district court's granting summary judgment de novo and apply the  same legal standards used by the district court. Hilburn v. Murata Elecs. N.  Am., Inc., 181 F.3d 1220, 1225 (11th Cir. 1999). Summary judgment is appropriate  when "there is no genuine issue as to any material fact and the moving party is  entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). While factual  issues and reasonable inferences therefrom are considered in favor of the  non-moving party, the district court's legal determinations are reviewed de  novo. Hilburn, 181 F.3d at 1225. "The interpretation of an insurance contract is  a question of law subject to de novo review." Galindo v. ARI Mut. Ins. Co., 203  F.3d 771, 774 (11th Cir. 2000). A federal court sitting in diversity must apply  state substantive law. Allison v. Vintage Sports Plaques, 136 F.3d 1443, 1445  (11th Cir. 1998) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817  (1938)). Thus, "we are bound to decide the case the way it appears the state's  highest court would." Towne Realty, Inc. v. Safeco Ins. Co., 854 F.2d 1264, 1269  n.5 (11th Cir. 1988).


9
A. Nondelegable Duty of a General Contractor


10
While Alabama law generally does not hold a prime or general contractor liable  for independent acts of a subcontractor, the general contractor remains liable  to third parties under two exceptions: (1) the type of work performed,  regardless of the care and skill used, probably will cause damage, "'or is  necessarily and intrinsically dangerous'" or (2) "[t]he general contractor 'is  responsible for the manner of the performance of his nondelegable duties, though  done by an independent contractor.'"7.( Clark v. Jackson, 549 So.2d 85, 86 (Ala.  1989) (citations omitted). With respect to road construction involving  excavations, the Alabama Supreme Court stated that "our cases have long  recognized that one causing or initiating excavations on or about the public  thoroughfares of this state owes to the public a nondelegable duty to protect  travelers from an unreasonable risk of harm caused by the excavations." Sims v.  Star-Mindingall Water Sys., 619 So.2d 1368, 1369 (Ala. 1993). In reversing a  directed verdict for the general contractor, the court confirmed the application  of the nondelegable-duty exception for safety of the roadway, although the  plumbing subcontractor placed the dirt pile into which the motorist collided in  the roadway lane of travel. See id. Application of Sims in this case shows that  Grills cannot escape its nondelegable duty to insure a safe roadway for the  traveling public by arguing that the cause of Chase's accident and death was  Whitaker's placement of the barricades and barrels because provision and  maintenance of these warning objects was a necessary and integral part of the  road construction that Grills contracted to perform for Alabama. See id.


11
Furthermore, Alabama's contract with Grills specifically created a nondelegable  duty in Grills, the general contractor, to maintain a safe roadway for the  traveling public during the road construction work. In addition to requiring  Grills to provide and maintain safe intersections, to insure the least  obstruction to traffic, to place materials and equipment to insure minimum  danger to the traveling public, and to maintain the original placement of all  barricades and other traffic control devices, the contract expressly stated:


12
The Contractor shall assume full responsibility for the continuous and  expeditious maintenance of all construction warning signs, barricades and  other traffic control devices. . . . .[T]he Contractor is not relieved of his  responsibility to continuously review and maintain all traffic handling  measures and insure himself that adequate provisions have been made for the  safety of the public . . . .


13
R1-1-3; see Jones v. Power Cleaning Contractors, 551 So.2d 996, 998 (Ala. 1989)  ("It is clear from the contract that the contractor . . . had a specific duty to  provide a safe workplace for the workmen. This duty did not end once the work  had been subcontracted."). The contract between Grills and Alabama imposed upon  Grills a nondelegable duty to inspect and to maintain continuously all traffic  handling measures to insure the safety of the traveling public. Because of its  nondelegable duty under its contract with Alabama, Grills remained responsible  for placement of the barricades, the moving of which obstructed Washburn's view  and contributed to her collision with Chase that resulted in Chase's death.  Consequently, Grills settled the case with Chase's administratrix for $400,000,  which Royal paid. See supra note 6 (Royal's agent Mahon testified that Grills,  as general contractor, settled the case because it had "overall  responsibility").

B. Subcontract Indemnity Agreement

14
We have established that Grills had a nondelegable duty under its contract with  Alabama and state law to maintain the safety for the traveling public of the  roadway which it contracted to widen. This necessarily included the area which  Whitaker had been subcontracted to pave and which was the location of Chase's  fatal accident. In this appeal, we must decide whether the indemnification  agreement in Whitaker's subcontract with Grills entitles Royal to reimbursement  from Whitaker of the $400,000 plus interest, costs, and attorney's fees that it  has paid for Grills's settlement. Therefore, the issue to be resolved is whether  Grills's nondelegable duty to provide a safe roadway for the traveling public,  which was not stated specifically in the indemnity agreement, affects our  analysis of this agreement under which Royal proceeds for reimbursement.


15
The Alabama Supreme Court has decided that indemnity agreements between private  parties are valid where "the parties knowingly, evenhandedly, and for valid  consideration, intelligently enter into an agreement whereby one party agrees to  indemnify the other, including indemnity against the indemnitee's own wrongs, if  expressed in clear and unequivocal language." Industrial Tile, Inc. v. Stewart,  388 So.2d 171, 176 (Ala. 1980). Nevertheless, the Alabama Supreme Court  subsequently clarified how strictly the "'clear and unequivocal language'" of  the indemnity agreement is to be construed. Brown Mech. Contractors, Inc. v.  Centennial Ins. Co., 431 So.2d 932, 945 (Ala. 1983) (quoting Industrial Tile,  388 So.2d at 176). "Agreements by which one party agrees to indemnify another  for the consequences of the other's acts or omissions are carefully  scrutinized," and such an agreement "is enforceable only if the indemnity  provisions are unambiguous and unequivocal." City of Montgomery v. JYD Int'l,  Inc., 534 So.2d 592, 594 (Ala. 1988).


16
In Brown, the Alabama Supreme Court instructed that three factors are to be  considered by a court interpreting an indemnity agreement: (1) "contractual  language," (2) "identity of the draftsman of the language," and (3) "the  indemnitee's retention of control." Brown, 431 So.2d at 946. While particular  language in the indemnity agreement is not required, the requisite intent of the  parties must be clear.8 See id. at 945. Ambiguous language9 in an indemnity  agreement is construed against the drafter. See id. at 946.10 Finally, we must consider "the degree of control retained by the indemnitee over the activity or  property giving rise to liability." Brown, 431 So.2d at 946; see City of  Montgomery, 534 So.2d at 595 ("The more control the indemnitee retains over the  area, the less reasonable it is for the indemnitor to bear the responsibility  for injuries that occur in that area.").11


17
The district judge concluded that the indemnity agreement in this case is  "ambiguous" and "grammatically meaningless."12 R1-20-5. Even if we were to  supply "due" under Alabama rules of contract construction13 to overcome the  ambiguity of the wording of the indemnity agreement at issue, as Royal suggests,  we cannot resolve this appeal because we do not have direction from the Alabama  Supreme Court that this indemnity agreement would include indemnity for Grills's  failure to perform its nondelegable duty to insure a safe roadway for the  traveling public when this omission is not specifically stated in the indemnity  agreement as it was in Industrial Tile.14


18
Accordingly, we certify to the Supreme Court of Alabama pursuant to Alabama Rule  of Appellate Procedure 18 the following question:


19
MUST AN INDEMNITY AGREEMENT SPECIFICALLY STATE THAT AN INDEMNITOR WILL  INDEMNIFY THE INDEMNITEE FOR A NONDELEGABLE DUTY TO WHICH THE INDEMNITEE IS  SUBJECT UNDER STATE LAW TO REQUIRE INDEMNIFICATION FOR THE FAILURE TO EXECUTE  SUCH NONDELEGABLE DUTY, WHICH RESULTS IN THE UNDERLYING CAUSE OF ACTION FOR  WHICH INDEMNIFICATION IS SOUGHT?


20
Our statement of the certified question is not meant to limit the scope of  inquiry by the Alabama Supreme Court. The entire record in this case, together  with the parties' briefs, are to be transmitted herewith.


21
QUESTION CERTIFIED.



NOTES:


*
  Honorable Arthur L. Alarcon, U.S. Circuit Judge for the Ninth Circuit,  sitting by designation.


1
  The Standard Specifications that specifically are a part of Grills contract with  Alabama provide:
All barricades . . . shall be kept clean, legible, and in their proper position  at all times.  104.04(b)
[The Contractor] shall provide and maintain in a safe condition temporary  approaches or crossings and intersections with . . . roads [and] streets . . . .  The Contractor shall furnish, erect, and maintain barricades, warning signs,  delineators, flagmen, and pilot cars in accordance with Section "G", of the  "Alabama Manual on Uniform Traffic Control Devises for Streets and Highways."   104.04(d)
The Contractor shall at all times conduct his work so as to insure the least  possible obstruction to traffic. The safety and convenience of the general  public and residents along the highway shall be provided for by the Contractor  as specified under Article 104.04.  107.07(a)
Materials and equipment on the right of way shall be so placed as to insure  minimum danger to the traveling public.  107.07(b)
The Contractor shall provide, erect and maintain all necessary barricades,  suitable and sufficient lights, danger signals, signs, and other traffic control  devices; . . . and shall take all necessary precautions for the protection of  the work and safety of the public. Highways or parts of the work closed to  traffic shall be protected by effective barricades . . . . No signs, barricades,  lights or other protective devices shall be dismantled or removed without the  permission of the Engineer.  107.10
The location . . . and horizontal and vertical placement with respect to the  pavement of warning signs, barricades and other traffic control devices shall be  as required by the plan details, AMUTCD and as directed or approved by the  Engineer. The Contractor must advise and have the approval of the Engineer prior  to installing or removing traffic control devices from the project.  740.03(a)
The Contractor shall assume full responsibility for the continuous and  expeditious maintenance of all construction warning signs, barricades and other  traffic control devices . . . . All items used for traffic control shall be  generally maintained in its original placement condition and such maintenance  will be considered a part of the original installation cost.  740.03(c)
Reference is made to Section 107 of the Specifications which covers the legal  responsibilities of the Contractor to the traveling public. Although the  Department will be designating and directing the placement of certain traffic  control devices, the Contractor is not relieved of his responsibility to  continuously review and maintain all traffic handling measures and insure  himself that adequate provisions have been made for the safety of the public and  workmen. Construction signs and other traffic control devices specified by plan  details are considered the necessary requirements for satisfactory traffic  control . . . .  740.03(d)
R1-1-2-3 (alterations in original) (emphasis added).


2
  The indemnity agreement in the subcontract between Grills and Whitaker provides:
The Subcontractor covenants to indemnify and save harmless and exonerate the  Contractor and the Owner of and from all liability, claims and demands for  bodily injury and property damage arising out of the Work undertaken by the  Subcontractor, its employees, agents or its subcontractors, and arising out of  any other operation no matter by whom performed for and on behalf of the  Subcontractor, whether or not in whole or in part to conditions, acts or  omissions done or permitted by the Contractor or Owner.
R1-15-Exh. E at 2.


3
  Washburn also testified that she had to lean forward on her steering wheel to  attempt to get a clear view of oncoming traffic from the north. R1-15-Exh. I at  33, 34, 226.


4
  Royal's George S. Mahon, Jr., who handled the settlement of the claim against  Grills, testified that there was no witness testimony or photographic evidence  that Whitaker moved the barricades at the accident scene. R1-15-Exh. J at 23-24.  Additionally, he testified that the notes that he received from his manager  stated: "Co-defendant paving contractor should be dismissed, as they were not  there at the time." Id. at 41.


5
  The relevant questions and Nooney's responses are as follows:
Q. . . . Having looked at that indemnity agreement, in your practical opinion-or  given your practical experience, in your opinion, is the subcontractor required  to indemnify the contractor for bodily injury caused by the contractor's  negligence?
A. No. . . . .
Q. . . . You understood, though, that Grills was responsible for this job and  under the contract with the State of Alabama in the event-whether it was  Whitaker or any other subcontractor that did something that caused an accident,  that Grills could be responsible based on the contract that you had with the  State of Alabama?
A. Yes. R1-15-Exh. K at 14-15, 43 (emphasis added).


6
  Pertinent portions of Mahon's deposition testimony are as follows:
Q. While you were handling the underlying lawsuit, were you aware of the  potential liability of Grills for not having enough barricades or barrels at the  subject intersection at the time of the accident?
A. We were certainly aware of Grills' exposure to that type of claim. . . . .
Q. Is that [the allegation that Grills negligently placed the barricades and  barrels originally irrespective of Whitaker's moving them] something you  factored in in deciding to settle the underlying case?
A. Well, we were looking . . . at it from the standpoint that Grills, as the  general contractor, had the overall responsibility for what happened out there,  whether Grills was directly at fault or whether one of its subs did it. . . . .
Q. What was your rationale for settling the case?
A. First off, Grills was the general contractor, and we had overall  responsibility. We had a fatality; there were low limits on the two vehicles  involved. We knew that the barricades had been moved; they were definitely out  of compliance with the State specs, and that's basically it. . . . .
Q. So it's your understanding that if one of Whitaker's contracting trucks ran  over a pedestrian that R.E. Grills would have to pay for that?
A. Depends on the facts in the case, but ultimately, Grills could be  responsible. . . . .
Q. Thus Grills could have been exonerated with regard to the allegations made by  the Plaintiff pertaining to the initial placement of the barricades but R.E.  Grills could still be found liable as a result of Whitaker Contracting's conduct  based on the contract that Grills had with the State of Alabama?
A. Absolutely. R1-15-Exh. J at 17, 18, 22, 29, 52 (emphasis added).


7
  While both exceptions are applicable to this case, we conclude that the  nondelegable-duty exception is sufficient and dispositive as to Grills's  ultimate responsibility for public traveling safety on the portion of the  roadway undergoing widening for the duration of the road construction project.


8
  The indemnity agreement that the Alabama Supreme Court upheld in Industrial Tile  as specifically requiring indemnification of the plant owner by an independent  contractor for the electrocution and injury of workers renovating its plant  provided:
The Contractor [Industrial Tile] shall be solely responsible to indemnify and  hold harmless the Owner . . ., its agents, servants and employees, from and  against any and all claims, losses, suits, damages, judgments, expenses, costs  and charges of every kind and nature, whether direct or indirect, on account of  or by reason of, bodily injuries (including death) to any person or persons,  including, but not limited to its agents, servants and employees or other of the  Owner, Contractor or any subcontractor and injury to or destruction of property  (including the loss of use thereof) of the Owner, or others arising out of or  occurring in connection with the performance of the work to be done pursuant to  the contract and whether or not caused by or contributed to, or alleged to have  been caused by or contributed to, by the active, passive, affirmative, sole or  concurrent negligence or breach of any statutory duty, whether non-delegable or  otherwise on the part of the owner or its agents, servants or employees, or  liability therefor imputed as a matter of law to the owner and/or its agents,  servants or employees or from the failure of or any condition in materials or  parts or faulty workmanship furnished by the Owner, Contractor or any  Sub-Contractor and/or their respective agents, servants or employees pursuant to  the Contract.
Industrial Tile, 388 So.2d at 175 (alteration in original) (emphasis added).
The indemnification contract language in Brown did not clearly and unequivocally  state an intent that the subcontractor indemnify the contractor for the  contractor's negligence, specifically, the failure to supervise its  subcontractor's work. Brown, 431 So. 2d at 945-46. In contrast, the indemnity  agreement upheld in Industrial Tile specified in detail the acts or omissions  for which the independent contractor would indemnify the owner; relevant to this  case is inclusion of the indemnitee's breach of statutory or nondelegable  duties. See id. at 945; see also Crigler v. Salac, 438 So.2d 1375, 1386 (Ala.  1983) (per curiam) (finding that the subject indemnification agreement did not  clearly evidence an intent to indemnify against the indemnitee's particular  negligence and contrasting the language of the Industrial Tile indemnification  agreement, including the indemnification for the indemnitee's concurrent  negligence or breach of any statutory or nondelegable duty, which met "the clear  indication test").
The language of the indemnity agreement in Whitaker's subcontract with Grills  does not specifically obligate Whitaker to indemnify Grills for breach of its  nondelegable duty to insure the safety of the roadway as did the indemnity  agreement in Industrial Tile, which specifically included indemnity for  nondelegable duties. Thus, we do not know whether "all liability, claims and  demands for bodily injury and property damage arising out of the Work undertaken  by the Subcontractor . . . whether or not in whole or in part to conditions,  acts or omissions done or permitted by the Contractor or Owner" encompasses the  nondelegable duty that Grills had under its underlying contract with Alabama and  under state law to maintain the safety of the highway under construction for the  safety of the traveling public. R1-15-Exh. E at 2 (emphasis added). We note that  Grills's Vice President with twenty-five years of experience with road  construction contracts testified that Grills would not be entitled to indemnity  by Whitaker on the language of the indemnity agreement. See supra note 5.  Experienced business establishments are capable of agreeing with specificity  regarding the coverage of indemnity agreements. See Humana Med. Corp. v. Bagby  Elevator Co., Inc., 653 So.2d 972, 975 (Ala. 1995) (recognizing that the  indemnity agreement between two business entities failed to include the specific  language which would be required for the indemnitee to be indemnified by the  indemnitor).


9
  Ambiguous contract language is susceptible of more than one meaning, while  unambiguous contract language clearly states one reasonable meaning. See Alfa  Mut. Ins. Co. v. Nationwide Mut. Ins. Co., 684 So.2d 1295, 1299-1300 (Ala.  1996).


10
  Like the indemnity contract language at issue in Brown, the indemnity agreement  in Whitaker's subcontract with Grills occurs in Grills's preprinted form  subcontract. See Brown, 431 So.2d at 946; R1-15- Exh. E. "When one seeks  indemnification from another for damages that were caused by his own negligence,  strict construction of the indemnity agreement against the contractor is  particularly appropriate." Craig Construc. Co. v. Hendrix, 568 So.2d 752, 757  (Ala. 1990) (involving an almost identically worded indemnification agreement to  the one in this case); see Humana, 653 So.2d at 975 (distinguishing Industrial  Tile because the subject indemnity provision was ambiguous with respect to the  indemnitor's indemnifying the indemnitee for the consequences of the  indemnitee's acts).


11
  We are mindful that a public works contract, implicating policy issues, was the  underlying contract for which Grills subcontracted with Whitaker for the paving  and that a member of the public, not an employee of the contracting parties,  died because of the failure of Grills to execute its nondelegable duty of  providing a safe roadway for the traveling public. The Alabama Supreme Court has  recognized that allowing "the indemnitee to transfer financial responsibility to  the indemnitor" when the indemnitee has ultimate control and responsibility for  the safety of the area where an accident occurred "would be totally at odds with  the tort system's incentives to encourage safety measures." City of Montgomery,  534 So.2d at 595.


12
  As written, the questioned indemnity provision of the subcontract between Grills  and Whitaker states: "The Subcontractor covenants to indemnify and save harmless  and exonerate the Contractor and the Owner of and from all liability, claims and  demands for bodily injury and property damage arising out of the Work undertaken  by the Subcontractor, its employees, agents or its subcontractors, and arising  out of any other operation no matter by whom performed for and on behalf of the  Subcontractor, whether or not in whole or in part to conditions, acts or  omissions done or permitted by the Contractor or Owner." R1-15-Exh. E at 2. The  district judge found that the clause "whether or not in whole or in part to  conditions, acts or omissions done or permitted by the Contractor or Owner" was  nonsensical in the context of the indemnity agreement/sentence because it  "modifies the word 'Work.'" R1-20-5-6. This interpretation results in liability  for work done by Whitaker, the subcontractor, "to" actions or omissions done by  Grills, the contractor. The district judge stated that "[i]t is nonsense to  state that a person could actively 'do' an omission or that another person could  perform work 'to' that omission." Id. at 6. He concluded that "this construction  of the indemnity clause would only permit indemnification for claims arising out  of the negligence of the subcontractor, not based on the contractor's own  negligence." Id.


13
  Royal, the drafter, argues that Alabama rules of contract construction can be  read to permit supplying "due" in the challenged indemnity agreement to give the  entire indemnity provision meaning rather than making this omission the basis of  the interpretive focus. See, e.g., Attorneys Ins. Mut. of Ala., Inc. v. Smith,  Blocker & Lowther, P.C., 703 So.2d 866, 870 (Ala. 1996) ("Insurance contracts,  like other contracts, are construed so as to give effect to the intention of the  parties, and, to determine this intent, a court must examine more than an  isolated sentence or term; it must read each phrase in the context of all other  provisions."); Green v. Merrill, 308 So.2d 702, 704 (Ala. 1975) ("It is well  settled that the terms of an insurance policy are to be given a rational and  practical construction. . . . [P]rovisions of a policy which clearly indicate  the parties' real intent are not to be given a strained construction to raise  doubts where none exist." (citation omitted)). If "due" were inserted, as Royal  urges, then the last clause of the indemnity agreement would read: "whether or  not in whole or in part [due] to conditions, acts or omissions done or permitted  by the Contractor or Owner," and the interpretive problem exposed by the  district judge would be rectified.


14
  We recognize that Industrial Tile did not concern the omission of a nondelegable  duty. Nevertheless, the Industrial Tile indemnity agreement, approved by the  Alabama Supreme Court, was explicit in detailing the acts or omissions to which  indemnity applied. We have not found an Alabama Supreme Court case involving the  fact situation present in this appeal of an underlying cause of action that  results from failure to perform a nondelegable duty under state law for which  indemnity is sought.


