                                                     NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                      ___________

                    Nos. 12-2692 and 12-2780
                          ___________

 ANDREW SABRIC, Co-Executor of the Estate of Deborah Bachak;
GENEVIEVE SABRIC, Co-Executor of the Estate of Deborah Bachak,
                                          Appellants in No. 12-2692

                                 v.

  LOCKHEED MARTIN; U.S. SECURITY ASSOCIATES, INC.,

                                    Lockheed Martin,
                                           Appellant in No. 12-2780
                   _______________________

          On Appeal from the United States District Court
              for the Middle District of Pennsylvania
               D.C. Civil Action No. 3-09-cv-02237
                  (Honorable A. Richard Caputo)
                         ______________

                           ARGUED
                          March 5, 2013

     Before: SCIRICA, JORDAN, and ROTH, Circuit Judges.

                       (Filed: July 24, 2013)
Vincent S. Cimini, Esq. [ARGUED]
Sal Cognetti, Jr., Esq.
Foley, Cognetti, Comerford, Cimini & Cummins
507 Linden Street
7th Floor
Scranton, PA 18503

      Counsel for Appellants/Cross-Appellees Andrew Sabric and Genevieve Sabric

Barbara S. Magen, Esq.
Post & Schell
1600 John F. Kennedy Boulevard
Four Penn Center, 14th Floor
Philadelphia, PA 19103

Joseph F. McNulty, Jr., Esq.
Jonathan B. Sprague, Esq. [ARGUED]
Post & Schell
1245 South Cedar Crest Boulevard
3rd Floor
Allentown, PA 18103

      Counsel for Appellee/Cross-Appellant Lockheed Martin Corp

Jill Cantor-Burns, Esq. [ARGUED]
Jay L. Edelstein, Esq.
Edelstein Law
230 South Broad Street
Suite 900
Philadelphia, PA 19102

      Counsel for Appellee US Security Associates Inc.

                                 _________________

                             OPINION OF THE COURT
                                _________________




                                          2
SCIRICA, Circuit Judge.

       This case arises out of the deadly shooting of Deborah Bachak, a Lockheed Martin

Corporation employee, by her former paramour, George Zadolnny. Zadolnny was a

security guard with U.S. Security Associates and worked at the Lockheed facility.

Bachak’s parents and estate brought suit against Lockheed and U.S. Security, alleging

defendants’ negligence caused Bachak’s death. Lockheed asserted a cross-claim against

U.S. Security for indemnification.

       We will affirm the District Court’s order insofar as it granted summary judgment

to Lockheed and U.S. Security on plaintiffs’ negligence claims. We will reverse as to

Lockheed’s cross-claim and remand to the District Court with instructions that summary

judgment be entered for Lockheed.

                                             I.

       Pursuant to a security services contract, U.S. Security provided uniformed security

guards to the Lockheed facility. One guard per shift was armed. In May 2004, U.S.

Security hired Zadolnny as the first-shift armed security officer for the Lockheed facility.

Bachak was a long-time Lockheed employee working in the Document Control

Department. Bachak and Zadolnny entered into a romantic relationship in late 2007. They

moved in together in early 2008 and became engaged that spring. Bachak terminated the

relationship between August and October of 2008.

       On December 16, 2008, while on duty, Zadolnny left the guardhouse under the

guise of going to the restroom. He walked over to the Document Control Room,

encountered Bachak, and asked if she would speak with him in the mailroom. Once

                                             3
Bachak met Zadolnny in the mailroom, he shot her five times. Zadolnny took his own life

immediately after killing Bachak.

       Bachak’s parents (the “Sabrics”) brought suit individually and as co-executors of

Bachak’s estate in the Lackawanna County Court of Common Pleas. Against Lockheed,

plaintiffs asserted claims for negligence, vicarious liability, wrongful death, and a

survival action. Against U.S. Security, plaintiffs asserted claims for negligence, assault

and battery, vicarious liability, wrongful death, and a survival action. Lockheed removed

the action to the District Court for the Middle District of Pennsylvania, where both

Lockheed and U.S. Security moved to dismiss the action for various reasons. The District

Court largely denied their motions. Lockheed then brought a cross-claim against U.S.

Security, contending U.S. Security was contractually obligated to indemnify it.

       After discovery, defendants moved for summary judgment against plaintiffs. The

District Court granted defendants’ motion, finding Lockheed and U.S. Security did not

owe Bachak any duty and therefore could not be held liable under a negligence theory. 1

Lockheed also moved for summary judgment on its indemnification claim against U.S.

Security. The District Court denied this motion and dismissed the cross-claim because

U.S. Security was adjudicated non-negligent. The Sabrics appeal, asserting both

Lockheed and U.S. Security owed Bachak a duty and breached it. Lockheed cross-

appeals the denial of its claim for indemnification.

1
  The District Court also granted summary judgment to U.S. Security on the vicarious
liability claim (finding plaintiffs abandoned it) and the assault and battery claim (finding
no evidence that U.S. Security had reason to suspect Zadolnny would act violently or that
U.S. Security would have been able to control his conduct). Plaintiffs do not appeal these
rulings.
                                              4
                                             II.2

       To establish a claim for negligence, the plaintiff must show: (1) the defendant

owed a duty of care to the plaintiff; (2) the defendant breached that duty; (3) there is a

causal connection between the defendant’s breach and the plaintiff’s injury; and (4) the

plaintiff incurred actual loss. Feeney v. Disston Manor Personal Care Home, Inc., 849

A.2d 590, 594 (Pa. Super. Ct. 2004). Whether the defendant owed a duty of care under

the first element is a question of law. Matharu v. Muir, 29 A.3d 375, 384 (Pa. Super. Ct.

2011). The inquiry involves “weigh[ing] several discrete factors, including: (1) the

relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature

of the risk imposed and foreseeability of the harm incurred; (4) the consequences of

imposing a duty upon the actor; and (5) the overall public interest in the proposed

solution.” Lindstrom v. City of Corry, 763 A.2d 394, 397 (Pa. 2000).

       Plaintiffs assert defendants owed Bachak a duty under three theories: (A) Section

317 of the Restatement (Second) of Torts; (B) Section 323 of the Restatement; and (C)

non-Restatement Pennsylvania common law. We will address each theory in turn.

                                              A.




2
  The District Court had diversity jurisdiction under 28 U.S.C. § 1332(a)(1), as the
Sabrics are residents of Pennsylvania; U.S. Security is a corporate citizen of Delaware;
Lockheed is a corporate citizen of Maryland; and the amount in controversy exceeds
$75,000. We have jurisdiction under 28 U.S.C. § 1291, as this is an appeal from final
judgment. We review the grant of summary judgment de novo, applying the same
standard as the District Court. DeHart v. Horn, 390 F.3d 262, 267 (3d Cir. 2004).
Summary judgment is appropriate “when there is no genuine issue of material fact to be
resolved at trial and the moving party is entitled to judgment as a matter of law.” Id.
                                              5
         Plaintiffs assert that under § 317 of the Restatement (Second) of Torts, defendants

had a duty to exercise reasonable care so as to control Zadolnny because defendants knew

of his propensity for violent behavior.3 The District Court found the Pennsylvania

Supreme Court’s decision in Dempsey v. Walso Bureau, Inc., 246 A.2d 418 (Pa. 1968),

was on point and precluded a duty under § 317 because Zadolnny’s allegedly dangerous

disposition was never reported to the management or human resources department of

either defendant.4 On appeal, plaintiffs contend the trial court erred in failing to consider

evidence establishing that both Lockheed and U.S. Security knew or should have known

of the risk of harm Zadolnny posed to Bachak.




3
    Section 317 states the following:

         A master is under a duty to exercise reasonable care so to control his
         servant while acting outside the scope of his employment as to prevent him
         from intentionally harming others or from so conducting himself as to
         create an unreasonable risk of bodily harm to them, if
         (a) the servant
                 (i) is upon the premises in possession of the master or upon
                 which the servant is privileged to enter only as his servant, or
                 (ii) is using a chattel of the master, and
         (b) the master
                 (i) knows or has reason to know that he has the ability to
                 control his servant, and
                 (ii) knows or should know of the necessity and opportunity
                 for exercising such control.

Restatement (Second) of Torts § 317 (1965); see also Dempsey v. Walso Bureau, Inc.,
246 A.2d 418, 419-20 (Pa. 1968) (approving the use of § 317 as an accurate statement of
Pennsylvania law).
4
  Although Zadolnny was a U.S. Security employee, for the purpose of the analysis, the
District Court assumed Zadolnny was also an employee of Lockheed, as opposed to an
independent contractor. We make the same assumption for the purpose of our analysis.
                                              6
       In Dempsey, Steinberg, a bus terminal security guard employed by Walso Bureau,

attacked dispatcher Dempsey and pinned him to the ground. Id. at 419. Dempsey brought

a personal injury suit against Walso Bureau, contending the company knew or should

have known of Steinberg’s dangerous propensity for violence and should not have

continued to employ him.

               The record reveal[ed] the following prior actions of Steinberg: (a)
       Williams, a bus driver, had seen Steinberg push drunken persons out of the
       bus terminal but had never seen him use his night stick on them; (b)
       Vincent, a bus driver, had seen Steinberg bang his night stick on walls and
       doors of the terminal but never in any other manner, had seen Steinberg
       grab and push terminal employees in ‘horse-play’, although such actions
       did not appear to Vincent to be injurious; (c) Burnett, a porter, stated that
       Steinberg had jabbed him in the back with his night stick which Steinberg
       seemed to think was a joke but did not seem so to Burnett; (d) Alston, an
       express and baggage agent, saw Steinberg grab employees, jab them with
       his night stick and, on one occasion, put his night stick between Alston’s
       legs while he was bending over and, on this occasion, Alston told Steinberg
       that he would punch him if such action was repeated and Steinberg never
       did it again; (e) Sigman, a bus driver, saw Steinberg hit, with his night
       stick, the soles of the shoes of a man sleeping in the terminal; (f) Svtser, a
       ticket agent, saw Steinberg strike, with his night stick, the feet of persons
       sleeping in the terminal and put such persons out of the terminal by pushing
       them in the back with his stick.

Id. at 422-23. The Pennsylvania Supreme Court found Steinberg’s prior actions

constituted annoying horseplay but “did not show a propensity on the part of Steinberg

which was vicious or dangerous and which indicated that he intended to inflict injury

upon others.” Id. at 423. Nor, the court found, should Walso Bureau have known of any

dangerous propensities of Steinberg because the supervisor never received any report of

Steinberg’s actions. Id.




                                             7
       Dempsey’s reasoning extends beyond contexts involving horseplay. In drawing the

conclusion that Walso Bureau did not owe Dempsey a duty under § 317, the court relied

on Fletcher v. Baltimore & Potomac R.R. Co., 168 U.S. 135 (1897), which preceded the

Restatement (Second) of Torts. In Fletcher, the Court held that

       if by reason of neglect to perform its duty to see that its employees do not
       act in a manner dangerous to other persons, an act is performed by an
       employee outside the scope of his employment and such act is one of a
       series of the same kind of acts of which the employer had knowledge and in
       which it acquiesced and, if such act of the employee is in its nature
       dangerous, then the employer is liable to one injured by its employee.

Dempsey, 246 A.2d at 422 (emphasis added) (citing Fletcher, 168 U.S. 135).

       Thus, while a wayward employee need not have committed the exact same act in

the past (e.g., murder) in order to hold the employer liable under § 317, the wayward

employee must have committed prior acts of the same general nature as the one for which

the plaintiff brings suit—acts that show the employee is “vicious or dangerous and . . .

intended to inflict injury upon others.” Id. at 423. Compare Hutchison ex rel. Hutchison

v. Luddy, 742 A.2d 1052, 1059 (Pa. 1999) (finding that diocese had a duty under § 317 to

prevent priest from molesting more children where diocese knew that priest had engaged

in pedophilic behavior in the past) with R.A. ex rel. N.A. v. First Church of Christ, 748

A.2d 692, 698-99 (Pa. Super. Ct. 2000) (finding church was not liable under § 317 for

minister’s sexual abuse of child, where the only warning signs were an unsubstantiated

rumor that minister was having an extramarital affair and a statement by minister to

church members that he had an excessive interest in pornography as a young man).




                                             8
       Viewing the facts in the light most favorable to plaintiffs, and drawing all

inferences in their favor, MD Mall Associates, LLC v. CSX Transp., Inc., 715 F.3d 479,

485 n.6 (3d Cir. 2013), we find the evidence insufficient to establish a duty under § 317

on the part of either defendant. Supervisors at Lockheed and U.S. Security knew, at best,

that Zadolnny had sometimes become agitated and angry, had verbally lashed out, and

harbored a vendetta toward his ex-fiancée. This knowledge was insufficient to place

defendants on notice that Zadolnny would one day physically harm Bachak.5 See also


5
        We have carefully considered plaintiffs’ allegations and evidence regarding what
supervisors knew about Zadolnny prior to the shooting.
        Plaintiffs contend that U.S. Security knew or should have known that Zadolnny
was dangerous because supervisors were aware that Zadolnny had dated Bachak, wanted
to single her out for “random” searches, and occasionally argued with his fellow guards.
Plaintiffs also cite the fact that two U.S. Security guards stated they warned a U.S.
Security supervisor that Zadolnny should not be permitted to carry a gun. In Lockheed’s
Final Report of the shooting incident, U.S. Security guard Kathy Calabrese said that she
reported to U.S. Security site supervisor Captain Frank Capobianco that “Zadolnny had a
temper and should not be carrying a gun.” J.A. vol. III, 311. Calabrese also said that she
told first-shift supervisor Sergeant Robert Peterlin that Zadolnny smelled like alcohol and
that someone needed to talk to Anthony Sacco, U.S. Security’s Regional Supervisor,
about Zadolnny because she was concerned he was “drained and exhausted.” Id. at 310.
In the same report, U.S. Security guard William Toms stated that he predicted to
Capobianco that the Zadolnny-Bachak relationship would “end in a tragedy.” Id. at 326.
Toms also stated that he told Capobianco, “This guy should not carry a gun or someone
will get hurt.” Id.
        We first note that under Dempsey, the § 317 inquiry focuses on whether the
employer knew of prior acts by the employee—not conclusory opinions from his
coworkers—that evince the employee’s propensity for violence. Thus, even though
Calabrese and Toms stated they shared concerns with their supervisor, their opinions,
conveyed without any supporting facts, were insufficient to put U.S. Security on notice of
the risk Zadolnny posed to Bachak. Moreover, the prior acts of which U.S. Security
supervisors were aware—including Zadolnny’s arguments with fellow guards and desire
to single out Bachak for searches—did not, by their nature, suggest a propensity for
violent behavior.
        Plaintiffs’ evidence with respect to Lockheed is even more tenuous. Plaintiffs
contend that Lockheed knew or should have known that Zadolnny was dangerous
                                             9
Davis v. Weyerhaeuser Co., 373 P.2d 985, 994 (Or. 1962) (finding that where employee

was known to be ornery, quarrelsome, and a bully, there was still no evidence that

employee had a reputation for being vicious or dangerous).

       In their briefs, plaintiffs highlight additional instances of Zadolnny’s problematic

behavior but fail to establish that reports of these instances were made to defendants’

management or human resources personnel. In Dempsey, the court explained that because

no supervisor had ever been given a report concerning Steinberg’s actions, it could not

find that Walso Bureau should have known of Steinberg’s violent tendencies. 246 A.2d at

423. The same is true here. As the District Court explained,

       Decedent and her co-workers did not find Zadolnny’s conduct necessary to
       warrant the lodging of a complaint with Lockheed’s Human Resources
       Department. And, without such a complaint, the Court cannot avoid the
       inevitable conclusion that the necessity to control Zadolnny’s conduct did
       not exist because he was not known, nor was he believed to be prior to the
       date of the shooting, to present an unreasonable risk of harm to Decedent.

Sabric v. Lockheed Martin Corp., No. 3:09-2237, 2012 WL 1952197, at *9 (M.D. Pa.

May 30, 2012).

       Given the lack of evidence suggesting Zadolnny was vicious or dangerous or that

Lockheed or U.S. Security should have known of the risk he posed, the District Court




because Charles Hughes, Lockheed’s Director of Human Resources, received a report
that Zadolnny once angrily confronted a coworker for speeding. Plaintiffs also seize on
statements made by Document Control Room Supervisor Ann Marie Juris: in Lockheed’s
Final Report, Juris stated that she witnessed Zadolnny yell at Bachak, and that Bachak
told her that she did not like the way Zadolnny yelled at her.
       At most, these incidents demonstrate that Zadolnny had some propensity toward
yelling when agitated; these incidents were again insufficient to put one on notice that
Zadolnny had a propensity toward violent behavior.
                                             10
found that defendants did not owe Bachak a duty under § 317 of the Restatement. We

agree.

                                               B.

         Plaintiffs assert that by instituting certain policies, defendants undertook to

provide a protective service to Bachak, and thereby acquired a duty under § 323 of the

Restatement (Second) of Torts to implement these policies with reasonable care.6

Plaintiffs contend the District Court erred in failing to consider all of the policies that

defendants had in place, including Lockheed’s Workplace Security policy, Harassment-

Free Workplace policy, and Post Orders/Standard Operating Procedures for Contract

Guard Force.7 Plaintiffs also bring our attention to U.S. Security’s internal rule


6
    Section 323 states the following:

         One who undertakes, gratuitously or for consideration, to render services to
         another which he should recognize as necessary for the protection of the
         other’s person or things, is subject to liability to the other for physical harm
         resulting from his failure to exercise reasonable care to perform his
         undertaking, if
         (a) his failure to exercise such care increases the risk of such harm,
         or
         (b) the harm is suffered because of the other’s reliance upon the
         undertaking.

Restatement (Second) of Torts § 323 (1965); see also Morena v. S. Hills Health Sys., 462
A.2d 680, 684 (Pa. 1983) (approving the use of § 323 of the Restatement as an accurate
statement of Pennsylvania law).
7
  The Workplace Security policy states Lockheed’s goal of providing a workplace free
from threats and acts of violence. It discusses employees’ responsibility to report and
management’s responsibility to appropriately respond to any threatened or actual harm to
persons or property. The Harassment-Free Workplace policy prohibits harassment and
outlines procedures for reporting it. The Post Orders discuss what Lockheed requires of
its guard staff, including the duties to abide by Lockheed rules, respond to threat
situations, and report violent acts to supervisors or the human resources department.
                                               11
prohibiting guards from fraternizing with client-employees. But even assuming that (1)

by instituting these policies, defendants undertook to protect Bachak from the harm that

occurred here, and (2) at least some of these policies were negligently implemented by

Lockheed and U.S. Security personnel, we nonetheless agree with the District Court that

these policies did not constitute actionable undertakings under either prong of § 323.

       We have said that for § 323(a) to apply, “the defendant’s negligent performance

must somehow put the plaintiff in a worse situation than if the defendant had never begun

the performance.” Turbe v. Gov’t of Virgin Islands, 938 F.2d 427, 432 (3d Cir. 1991); see

also Unglo v. Zubik, 29 A.3d 810, 815 (Pa. Super. Ct. 2011) (finding where decedent was

suicidal before and after diocese intervened and offered counseling services, diocese was

free to discontinue services at any time because it did not put decedent in a worse

position than before services began).

       No policy that plaintiffs assert defendants negligently implemented caused Bachak

to be placed in a worse position than she would have been in the absence of the policy.

Without Lockheed’s anti-harassment policy, Bachak would have been subject to

harassment without any internal corporate means to address it. And without Lockheed’s

Workplace Security policy and Post Orders (both of which directed personnel on how to

identify and react to potentially violent situations), there would have been no coordinated

effort to prevent or respond to workplace violence. Moreover, it is plaintiffs’ position that

U.S. Security’s no-fraternization policy was effectively ignored with respect to Bachak

and Zadolnny. Thus, the existence of the no-fraternization rule did not place Bachak in

greater danger than if it had not been implemented at all.

                                             12
       Plaintiffs are no more successful under § 323(b) because Bachak did not rely on

any of these policies to her detriment. As mentioned, Bachak and Zadolnny disregarded

U.S. Security’s no-fraternization rule. Similarly, Bachak never reported any threats or

harassment to security, management, or the human resources department as required by

Lockheed’s policies addressing violence in the workplace. Indeed, when Lockheed

employee Richard Lombardo became concerned that Zadolnny was bothering Bachak on

the morning of the shooting, Bachak downplayed the situation and asked Lombardo twice

to “leave it alone,” and not report Zadolnny to the human resources department. J.A. vol.

IX, 1112.

       Bachak’s failure to invoke the protective policies of Lockheed and U.S. Security

precludes a finding of reliance. Cf. Jain v. State, 617 N.W.2d 293, 299-300 (Iowa 2000)

(finding school had no duty under § 323 where it offered suicide prevention services but

student refused to take advantage of them). In addition, at least one court has found that

an employee could not have relied on an employer for protection where the employee did

not evince any awareness of the threat to herself. See Midgette v. Wal-Mart Stores, Inc.,

317 F. Supp. 2d 550, 561 (E.D. Pa. 2004) (“[E]ven if we were to assume that Wal–Mart

did assume a duty to protect Plaintiff . . . , there is no evidence on the record that would

even suggest . . . that Plaintiff was shot on Sunday because she relied on a belief that her

employer would protect her from any violence from Bryan. In fact, Plaintiff did not even

expect that Bryan would harm her physically at the Wal–Mart, much less shoot her.”).

       Given that there is no genuine issue of material fact that Bachak either (a) was

made worse off by defendants’ policies, or (b) relied on these policies to her detriment,

                                             13
we agree with the District Court that defendants did not owe Bachak a duty under

Restatement § 323.8

                                            C.

       Plaintiffs contend that even if we decline to find a duty under §§ 317 or 323 of the

Restatement, we should nonetheless recognize that defendants had a duty to provide a

safe workplace under Pennsylvania non-Restatement common law. But the duty to

provide a safe workplace is essentially the duty to prevent foreseeable acts of harm. See

Mike v. Borough of Aliquippa, 421 A.2d 251, 257 (Pa. Super. Ct. 1980) (finding that

Borough, as employer of police officers, failed to provide employee with a safe working

place where “there was a wealth of evidence from which the jury could conclude that the

Borough should have foreseen criminal, possibly violent, acts by the constables”). As we

previously stated, Zadolnny’s violent act was not reasonably foreseeable to Lockheed and

U.S. Security. Thus, any non-Restatement common law claim, if one exists, must fail.9

                                            III.




8
        Plaintiffs also contend Lockheed’s security protocols made Bachak worse off
under § 323 because she was prohibited from carrying a weapon to protect herself. But if
Bachak had perceived a threat, she still could have protected herself by making a report
to management or the human resources department. There was also no credible evidence
that the murder occurred because Bachak relied on the no-weapons policy.
        Lastly, plaintiffs allege that defendants were negligent in the supervision,
management, and training of the employees who provided protective services to Bachak.
We think this argument is a recharacterization of plaintiffs’ argument under § 317 and
dispose of it as such.
9
  Because we find that neither Lockheed nor U.S. Security may be held liable to plaintiffs
under a negligence theory, we needn’t consider whether Lockheed is vicariously liable
for U.S. Security’s actions.
                                            14
       Lockheed appeals the District Court’s denial of its motion for summary judgment

and dismissal of its cross-claim against U.S. Security for indemnity. Lockheed asserts

that it is contractually entitled to reimbursement from U.S. Security for litigation costs

and attorneys’ fees, regardless of whether U.S. Security is adjudicated non-negligent.

       A section of the parties’ contract entitled “Insurance/Entry on Lockheed Martin

Property” requires that if U.S. Security or its employees enter the Lockheed facility, U.S.

Security must obtain general liability, bodily injury, and property damage insurance in

reasonable amounts. This section then states:

       [U.S. Security] shall defend, indemnify and hold harmless [Lockheed], its
       officers, employees, and agents from any losses, costs, claims, causes of
       action, damages, liabilities, and expenses, including attorneys fees, all
       expenses of litigation and/or settlement, and court costs, by reason of
       property damage or loss or personal injury to any person caused in whole or
       in part by the actions or omissions of [U.S. Security], its officers,
       employees, agents, suppliers, or subcontractors.

J.A. vol. X, 1388.

       In Pennsylvania, “[w]hen the words of a contract are clear and unambiguous, the

meaning of the contract is ascertained from the contents alone.” Mace v. Atl. Ref. Mktg.

Corp., 785 A.2d 491, 496 (Pa. 2001). The contract here unambiguously entitles Lockheed

to reimbursement for all litigation expenses that it incurs because of any act or omission

of a U.S. Security employee that caused property damage, loss, or personal injury to

another. We decline U.S. Security’s invitation to read the contract as only providing

indemnification for an act or omission by U.S. Security that the court determines was

negligent. If the parties intended that Lockheed only be reimbursed for “any negligent

act” committed by U.S. Security, they could have said as much.

                                             15
       In addition, we do not find compelling U.S. Security’s assertion that the parties

would never have agreed to such sweeping indemnity rights. U.S. Security’s liability to

Lockheed is not endless under our reading of the contract; it is limited to expenses that

Lockheed incurs because of acts and omissions of U.S. Security and its employees. It is

not unreasonable that the parties would agree to such an arrangement.10

       Since Lockheed incurred costs and attorneys’ fees in defending a suit precipitated

by an act of a U.S. Security employee, U.S. Security is contractually obligated to

reimburse Lockheed for these expenses.

                                            IV.

       We will affirm the District Court’s grant of summary judgment to defendants

Lockheed and U.S. Security on the Sabrics’ negligence claims. With respect to

Lockheed’s indemnity cross-claim, we will reverse and remand to the District Court with

instructions that summary judgment be entered for Lockheed.


10
   A separate section of the contract entitled “Independent Contractor Relationship”
states:

              [U.S. Security] shall be responsible for and hold harmless
       [Lockheed] and its customers from and against all losses, costs, claims,
       causes of action, damages, liabilities, and expenses, including attorneys
       fees, all expenses of litigation and/or settlement, and court costs, arising
       from any act or omission of [U.S. Security], its officers, employees, agents,
       suppliers, or subcontractors at any tier, in the performance of any of its
       obligations under this Contract.

J.A. vol. X, 1388. U.S. Security asserts that it is not contractually required to indemnify
Lockheed because Zadolnny’s actions were not “in the performance of” U.S. Security’s
obligations under the contract. But the indemnity provision in the “Insurance/Entry on
Lockheed Martin Property” section contains no “in the performance of” limitation. We
will not read in this qualification to a provision that contains no reference to it.
                                             16
