                                                                                   [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                               FILED
                            FOR THE ELEVENTH CIRCUIT                  U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                     _______________                         FEB 23 2001
                                                                         THOMAS K. KAHN
                                                                               CLERK
                                     No. 99-12095
                                   _______________
                          D. C. Docket No. 98-01704-CV-BU-S


ROYAL INSURANCE COMPANY
OF AMERICA, a.k.a. R.E. Grills
Construction Co., Inc.,
                                                                          Plaintiff-Appellant,


                                             versus

WHITAKER CONTRACTING CORP.,

                                                                         Defendant-Appellee.


                          ______________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                        ______________________________
                                 (February 23, 2001)

Before BIRCH, BARKETT and ALARCON*, Circuit Judges.
_______________________________
* Honorable Arthur L. Alarcon, U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
BIRCH, Circuit Judge:

         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

         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


                                           2
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 §§

       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

                                                   3
740.03(c) and (d), which were incorporated in the contract between Grills and

Alabama for the subject road work).

       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


               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).

                                                  4
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

       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


       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.

                                                 5
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.

       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



       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.

                                                6
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

       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


       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.

                                                 7
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


                  ....
                 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.

                                                   8
       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

       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



                ....
              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).




                                                9
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).

A. Nondelegable Duty of a General Contractor

      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




                                           10
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.

       Furthermore, Alabama's contract with Grills specifically created a

nondelegable duty in Grills, the general contractor, to maintain a safe roadway for

       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.

                                               11
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:

      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 . . . .

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



                                           12
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

      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.

      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.


                                          13
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).

       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


       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

                                              14
       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).

                                               15
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




       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.

                                               16
       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


       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.

                                                 17
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

       Accordingly, we certify to the Supreme Court of Alabama pursuant to

Alabama Rule of Appellate Procedure 18 the following question:

       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?

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.




       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.

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QUESTION CERTIFIED.




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