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Aetna v. Marion Equipment Co. (5/19/95), 894 P 2d 664
Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, telephone (907) 264-0606; fax (907) 276-
THE SUPREME COURT OF THE STATE OF ALASKA
AETNA CASUALTY & SURETY CO., )
) Supreme Court Nos. S-6218/6268
Appellant and )
Cross-Appellee, ) Superior Court No.
) 3AN-93-412 Civil
) O P I N I O N
MARION EQUIPMENT CO., )
) [No. 4205 - May 19, 1995]
Appellee and )
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Dana A. Fabe, Judge.
Appearances: Mark A. Sandberg and
William M. Wuestenfeld, Sandberg, Smith,
Wuestenfeld & Corey, Anchorage, for Appellant
and Cross-Appellee. Daniel A. Gerety and
Andrew Guidi, Delaney, Wiles, Hayes, Reitman
& Brubaker, Inc., Anchorage, for Appellee and
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices.
[Eastaugh, Justice, not participating].
MOORE, Chief Justice.
This case requires us to determine whether an indemnity
clause in a lease agreement obligates Marion Equipment Company
(Marion) to indemnify Aetna Casualty & Surety Company (Aetna) for
its expenses in defending and settling a suit against the Howard
S. Wright Construction Company (Wright). The trial court granted
summary judgment in favor of Marion. We conclude that the
indemnity sought by Aetna is prohibited by AS 45.45.900 and
II. FACTS AND PROCEEDINGS
This case arises out of an injury sustained by James
Crane, a journeyman electrician employed by Cochran Electric
Company (Cochran). Cochran was a subcontractor employed by
Wright, the general contractor in the construction of the Fifth
Avenue Mall in Anchorage. Crane was repairing a construction
hoist that was erected, operated and maintained by Wright, and
leased by Wright from Marion. A component of the hoist crushed
Crane's arm, which was later amputated.
Crane sued Wright, Marion, and the hoist manufacturer,
among others. Wright tendered the claim to Cochran and Marion.
Cochran accepted Wright's tender, and in turn tendered the
defense to Aetna.
Marion was dropped from Crane's suit after winning
partial summary judgment which dismissed all negligence claims
against it. Aetna took the case to trial, where a jury found
Wright 95% liable for Crane's injuries and found Crane 5%
comparatively negligent. Crane won compensatory damages of
$3,805,055 and punitive damages of $500,000. Pre-judgment
interest and attorney's fees threatened to make Wright's total
exposure over $7 million, and in post-trial motion practice,
Aetna settled with Crane for $6.25 million.
The basis for the current suit is paragraph L of the
hoist lease agreement between Marion and Wright, which provided:
To the fullest extent permitted by law
[Marion] shall indemnify and save harmless
[Wright], its officers, agents, and employees
from and against any and all suits, claims,
actions, losses, costs, including attorney's
fees, penalties, damages, and loss of use, of
whatsoever kind or nature, . . . arising out
of, in connection with, or incident to
[Marion's] performance hereunder.
Aetna seeks indemnification by Marion for the $6.25 million
settlement, plus more than $460,000 in attorney's fees that were
incurred in Wright's defense.
The trial court entered summary judgment for Marion on
two independent grounds. First, the court accepted Marion's
argument that since Wright had agreed to put the hoist in working
order, operate it, and maintain it, Crane's injury "could not
reasonably be said to have originated from, grown out of, or
flowed from Marion's rental and delivery of the hoist". Second,
the court accepted Marion's contention that the indemnity clause
at issue here was rendered unenforceable by AS 45.45.900, which
A provision, clause, covenant, or
agreement contained in, collateral to, or
affecting a construction contract that
purports to indemnify the promisee against
liability . . . from the sole negligence or
wilful misconduct of the promisee or the
promisee's agents, servants or independent
contractors who are directly responsible to
the promisee, is against public policy and is
void and unenforceable.
The court held that the lease agreement came within the terms of
the statute and that Wright's behavior -- which the jury in
Crane's suit had deemed reckless and deserving of punitive
damages -- constituted "wilful misconduct"under the statute.
Aetna appeals from each of the trial court's rulings.
It argues that Crane's injury did in fact "arise out of"Marion's
performance under the lease agreement. It also contends that
AS 45.45.900 is inapplicable here, or that, if the statute
applies, it does not preclude indemnity on these facts. We find
it necessary to consider only the question whether AS 45.45.900
prohibits the indemnity Aetna seeks.
Marion is entitled to summary judgment if, drawing all
reasonable inferences in favor of Aetna, the record fails to
disclose a genuine issue of material fact and Marion is entitled
to judgment as a matter of law. Dayhoff v. Temsco Helicopters,
Inc., 772 P.2d 1085, 1086 (Alaska 1989). The interpretation of a
statute presents a question of law, which this court reviews de
novo. City of Dillingham v. CH2M Hill Northwest, Inc., 873 P.2d
1271, 1273 n.2 (Alaska 1994).
A. AS 45.45.900 Bars the Indemnity that Aetna Seeks
1. AS 45.45.900 applies to the equipment
We have never been asked to decide whether AS 45.45.900
applies to leases of construction equipment. However, at least
eighteen other states have enacted statutes identical or similar
to AS 45.45.900,1 and the weight of authority from the
jurisdictions that have considered this question indicates that
the statute does govern such leases. This body of authority,
coupled with the language of the Marion-Wright lease, convinces
us that AS 45.45.900 applies.
Calkins v. Lorain Division of Koehring Co., 613 P.2d
143 (Wash. App. 1980), dealt with contractual relationships
identical to the case at bar, although it examined an indemnity
clause that ran in the opposite direction. In Calkins, the
Mitchell Brothers Crane Division leased a crane to the Earley
Company, which operated and maintained it while dismantling a
chemical plant. An indemnity clause in the lease agreement said
that Earley would assume liability for all damages caused by the
operation of the crane. An Earley employee was injured by the
crane's operation, and sued Mitchell. Mitchell tendered a claim
to Earley, was rebuffed, and subsequently sued Earley under the
indemnity clause. Although the court based its holding on other
grounds, it concluded that the indemnity clause violated the
policy expressed by Washington's version of AS 45.45.900.2 Id.
Two Illinois courts have applied that state's statute3
to leases of construction equipment. Folkers v. Drott
Manufacturing Co., 504 N.E.2d 132 (Ill. App. 1987), factually
mirrors Calkins. Imperial Crane Services leased a crane to Clark
Painting Company. Under the lease, Clark indemnified Imperial
for liabilities arising out of the crane's operation. An
employee of Clark was injured by the crane and sued Imperial,
prompting Imperial to sue Clark under the indemnity clause. The
court found that the indemnity provision fell "squarely within
the parameters of the statute," basing this holding on the fact
that the lease agreement explained that the crane would be "for
use in construction." Id. at 137.
In the case at bar, the lease contains an effectively
identical provision: it obligates Marion to "furnish [the hoist]
. . . for the construction of ANCHORAGE 5TH AVENUE [mall]." The
lease gives further evidence that it is an agreement collateral
to a construction contract, by obligating Marion to "be bound by
the terms of said MAIN CONTRACT [between Wright and the mall
developers] . . . in any way applicable to this Subcontract".
An earlier Illinois case is American Pecco Corp. v.
Concrete Building Systems Co., 392 F. Supp. 789 (N.D.Ill. 1975).
In that case, Central Contractors Service leased a crane and
provided an operator to Gateway Erectors. A clause in the lease
obligated Gateway to assume liabilities arising from the use of
the leased equipment. After Central was sued for damages arising
from the crane's operation, Central sought indemnity from
Gateway. The court disallowed the suit under Illinois' version
of AS 45.45.900. Id. at 794.
Aetna attempts to distinguish American Pecco on the
grounds that the lessor in that case provided an operator as well
as a crane. American Pecco's holding, however, does not rely
solely on the court's conclusion that, "[b]y providing the crane
and operator, [the lessor] became in substance, a subcontractor."4
392 F. Supp. at 793. The court ruled that "[d]oubts as to who is
properly covered by this legislation should be resolved
consistent with legislative policy,"which the court defined as
"a clear intent to void exculpatory clauses that purport to hold
a person harmless from his own negligence in construction related
activities." Id. at 793-94. The court stated, in terms
applicable to the case at bar: "The crane was designed to be
used in construction activities. Central cannot logically claim
it was unaware of the use to which the crane would be put, when
the crane was in fact put to a designed use." Id. at 793.
Finally, Elliott Crane Service v. H.G. Hill Stores, 840
S.W.2d 376 (Tenn. App. 1992), stands in direct opposition to one
of Aetna's arguments against applying AS 45.45.900. Aetna argues
that the lease agreement here is not "contained in, collateral
to, or affecting a construction contract"because, under Alaska
law, Marion is not a contractor and cannot sign construction
contracts. In the Tennessee case, Elliott leased a crane and
provided an operator to Hill, under an agreement in which Hill
agreed to indemnify Elliott for liabilities arising out of the
"Lessee's operation." A Hill employee was injured and sued
Elliott, prompting Elliott's indemnity claim against Hill. The
court held that Elliott did not fit Tennessee's statutory
definition of a construction contractor, but, quoting American
Pecco, the court applied Tennessee's version of AS 45.45.9005 to
the indemnity claim. 840 S.W.2d at 380.
In sum, there is a substantial body of authority which
implies that the lease agreement before us is subject to AS
45.45.900. There are also cases which refuse to apply anti-
indemnity statutes similar to AS 45.45.900 to leases of equipment
used on construction sites. However, we find that these cases
are not only factually distinguishable from the case at bar, but
that their analysis actually favors applying AS 45.45.900.
In McMunn v. Hertz Equipment Rental Corp., 791 F.2d 88
(7th Cir. 1986), the court considered applying Indiana's version
of AS 45.45.9006 to an indemnity provision in Hertz's lease of a
"bobcat loader" to a construction contractor. The lease
indemnified Hertz from liabilities arising from the loader's
operation. The lessee contractor used the loader on a
construction site. A worker was injured and sued Hertz,
prompting Hertz's indemnity claim against the contractor. McMunn
allows us to evaluate Aetna's argument that if the lease
agreement in this case is subject to AS 45.45.900, then any
lessor of trucks, cars, or tools whose equipment finds its way
onto a construction site will be unwittingly and unfairly
deprived of its ability to enter into indemnity agreements.
Judge Posner based the court's ruling on the public
policy underlying anti-indemnity statutes of this type, which
legislatures have enacted in an effort to increase safety at
construction sites.7 The McMunn court decided that the policy
behind the statute would be only "weakly engaged"by the facts of
that case. 791 F.2d at 93. It reached that conclusion by means
of a syllogism which began with the assumption that a negligible
number of bobcats leased by Hertz were used in construction jobs.8
From this the court reasoned that even if the bobcat lease were
held subject to the anti-indemnity statute, "Hertz [would] not
make appreciably more careful inspections on the off chance that
the loader might be put to a use for which it would not have
indemnity." Id. Because the application of the statute to the
lease would not further the statute's goal of promoting worksite
safety, McMunn concluded that Indiana's anti-indemnity statute
should not be held to govern the rental agreement.
While its empirical assumption regarding the uses of a
bobcat loader may be questionable, McMunn's analysis is helpful.
Following Judge Posner's reasoning, AS 45.45.900 should be
applied to void indemnity clauses in equipment lease agreements
if such a legal rule would advance the purposes of the anti-
indemnity statute by inducing careful inspection and use of the
Unlike McMunn, the indemnitee in the instant case is
not the equipment supplier, Marion, but the general contractor
and a party to the construction contract, Wright. We believe
that where the indemnity clause runs in this direction, applying
AS 45.45.900 to the indemnity clause is consistent with the
legislative goal of increasing safety at construction sites.
Moreover, in the case at bar, the equipment leased was
a construction hoist which was designated by the terms of the
lease agreement for use in the construction of the Fifth Avenue
Mall. It is useful to note that while Judge Posner considered
only those indemnity clauses which ran in favor of the equipment
lessor, he hypothesized that "where the equipment supplied to the
party to the construction contract is specialized to . . .
construction or otherwise clearly intended for it,"the statutory
policy would be served by holding the agreement subject to the
indemnity bar. McMunn, 791 F.2d at 93. Therefore, even if the
indemnity clause at issue ran in favor of Marion, this case would
be identical to Judge Posner's hypothetical, and the "safety
incentives of the supplier might be enhanced by forbidding
In sum, although McMunn held that the lease agreement
at issue was not subject to Indiana's anti-indemnity statute, the
opinion leads us to conclude that in order to give effect to the
purpose of AS 45.45.900, we must apply the statute to the lease
at issue. McMunn also answers Aetna's "floodgates" argument,
which implies that there is no principled way to apply AS
45.45.900 to leased equipment without extending the holding to
every "truck rented from Hertz [and every] hammer rented from
Stephan's Tool Rental." Assuming the validity of this concern,
it is surely satisfied in cases like the present where the
equipment is "specialized to . . . construction or otherwise
clearly intended for it." McMunn, 791 F.2d at 93; see also
American Pecco, 392 F. Supp. at 793 (holding lease subject to
anti-indemnity statute because equipment "was designed to be used
in construction activities . . . and was in fact put to [that]
In the face of the authority discussed above, Aetna
relies on a Michigan case which it claims is the "only reported
decision which squarely addresses this issue." In Pritts v. J.I.
Case Co., 310 N.W.2d 261, 267 (Mich. App. 1981), the Mi-Jack
Products Company leased a travel lift to American Prestressed
Concrete Company (APC), a manufacturer of prestressed concrete
components. The lease agreement obligated APC to indemnify Mi-
Jack for liabilities arising out of the use of the lift. After
"an industrial accident"involving the lift, id. at 263, APC
argued that indemnity was prohibited by Michigan's version of AS
45.45.900.9 The court refused to apply the statute to "suppliers
of those engaged in construction." Id. at 267.
Another case refusing to apply an indemnity to a lease
of construction equipment is Orville Milk Co. v. Beller, 486
N.E.2d 555 (Ind. App. 1985), which involved the rental of space
heaters by a construction contractor who used them to warm part
of a building under construction. The heaters caused the carbon
monoxide poisoning of a worker, who was injured after he became
dizzy and fell. Id. at 558-59. The lease agreement indemnified
the lessor from liabilities arising from the heaters' operation.
The contractor attempted to avoid indemnification by arguing that
Indiana's version of AS 45.45.900 voided the indemnity agreement.
The court summarily refused to apply the statute. Id. at 561.
We decline to follow Pritts and Beller. First, as the
trial court in the instant case observed, the Pritts court
apparently struggled with what it perceived to be a dearth of
legal authority on this subject: "[the defendant] has not cited,
nor can we find, any cases in which the statute has been held to
apply to equipment suppliers." 310 N.W.2d at 267. We face no
such dilemma here, as shown by the authority discussed above.
Second, both cases are factually distinguishable from the case at
bar. Although its description of the facts is ambiguous, Pritts
implies that the leased travel lift was in use at an industrial
site rather than on a construction project. Id. The heaters
leased in Beller were not specifically designed for use in
construction, as was the hoist in the case before us. Moreover,
the lessor in Beller was not told of the purpose for which the
equipment was rented, 486 N.E.2d at 557, whereas the lease
agreement in the case at bar explicitly stated that the hoist
would be used in construction. Third, to the extent that these
cases support Aetna's contention that AS 45.45.900 does not apply
to "suppliers of those engaged in Construction,"we decline to
adopt such a rule.
Our analysis of the case law, the lease at issue here,
and the purpose of AS 45.45.900 lead us to conclude that the
Marion-Wright lease is governed by the statute. It now remains
for us to determine whether the statute renders the indemnity
agreement in the lease void and/or unenforceable.
2. AS 45.45.900 renders Aetna's claim for indemnity
The indemnity clause at issue is unenforceable if it
purports to indemnify Wright "from the sole negligence or wilful
misconduct of [Wright] or [Wright's] agents, servants or
independent contractors who are directly responsible to
[Wright]." AS 45.45.900. We conclude that Aetna is attempting
to seek indemnity for an injury that resulted from Wright's
wilful misconduct and sole negligence. Thus, on both of the
grounds set forth in AS 45.45.900, we hold the indemnity clause
in this case unenforceable.
The trial court held the indemnity clause unenforceable
because it concluded that Aetna was seeking indemnity for
Wright's wilful misconduct. The court based this conclusion on
the fact that the jury in the Crane lawsuit found that Wright's
behavior constituted grounds for punitive damages. In the words
of the jury instruction, Wright's conduct was found to be "the
result of maliciousness or hostile feelings toward the plaintiff,
or . . . undertaken with reckless indifference to the interests,
rights, or safety of others." Based on this finding of reckless
indifference, the lower court ruled that Wright's actions were
the equivalent of wilful misconduct.
Aetna argues that wilful misconduct is a term
inapplicable to Wright because it describes only those
tortfeasors who intend harm. We disagree. It is true that
"[t]he phrase 'wilful misconduct' implies intent. However, the
intention relates to the misconduct, not to the result, and,
therefore, an intent to injure need not be shown." Brockman v.
Bell, 605 N.E.2d 445, 449 (Ohio App. 1992).
A number of Alaska cases inferentially support the
lower court's holding that actions undertaken with "reckless
indifference to the interests, rights, and safety of others"
constitute wilful misconduct. In Van Biene v. ERA Helicopters,
Inc., 779 P.2d 315 (Alaska 1989), we held that allegations of
wilful misconduct were insufficient to make out a cause of action
for an intentional tort. Id. at 318-19. In Korean Air Lines Co.
v. State, 779 P.2d 333 (Alaska 1989), we noted that a defendant
had been found guilty of wilful misconduct by a jury following
The defendants' behavior is wilful
misconduct if they intentionally performed or
failed to perform some act or series of acts
(1) with knowledge that such act or
omission would probably result in injury or
(2) in a manner from which could be
implied reckless disregard of the probable
consequences of the act or omission.
Id. at 337 & n.3 (emphasis added). Finally, in Borg-Warner Corp.
v. Avco Corp., 850 P.2d 628 (Alaska 1993), we termed "persuasive"
the view that in comparative negligence jurisdictions like
Alaska, "wilful misconduct"should be considered a category of
misconduct that "falls short of being intentional."10 We held
that intentional tortfeasors are those who act with specific
intent to cause an injury. We classified "wilful and wanton"
actors as unintentional tortfeasors. Id. at 633.
What we have implied in the aforementioned cases, we
hold explicitly today in the context of AS 45.45.900: "wilful
misconduct" means volitional action taken either "with a
knowledge that serious injury to another will probably result, or
with wanton and reckless disregard of the possible results."
Rost v. United States, 803 F.2d 448, 450 (9th Cir. 1986)
(quotation omitted). Because Wright was found by a jury to have
acted with reckless disregard of Crane's interests and safety,
Wright's injurious behavior is properly termed wilful misconduct.
Consequently, AS 45.45.900 forbids the indemnity Aetna seeks.
Aetna cites Borg-Warner for the proposition that "a
comprehensive system of comparative negligence should allow for
the apportionment of damages in all cases involving misconduct
which falls short of being intentional." 850 P.2d at 633 n.14.
From this Aetna infers that AS 45.45.900 should be read to
"prohibit indemnity only for tortfeasors who . . . intended
harm." This inference is unwarranted, however. The case at bar
does not concern Alaska's "comprehensive system of comparative
negligence;" rather, this case requires us to construe AS
45.45.900, an anti-indemnity statute. In the statute, the
legislature chose to disallow indemnification in construction-
related contracts where the indemnitee is guilty of "wilful
misconduct"-- a term with specific legal meaning that does not
require intent to harm. The legislature's authority to enact
this provision is not in doubt, and thus we are bound to give
effect to this provision in light of our precedents concerning
the meaning of the term "wilful misconduct."
Aetna also argues that because liability for punitive
damages can be insured against in Alaska, activity that gives
rise to punitive damages should also be subject to
indemnification. While it is true, as Aetna notes, that a
company can insure itself against punitive damages, it is equally
true, under AS 45.45.900, that except in an insurance contract no
party in a construction-related contract may obtain indemnity for
its "sole negligence or wilful misconduct." In other words,
Aetna's argument simply ignores the fact that the parameters of
indemnity law have been narrowed by the legislature in a way that
the parameters of insurance law have not. Since we are obligated
to respect this legislated distinction, we must reject Aetna's
interpretation of AS 45.45.900.
Finally, even if Wright had not engaged in wilful
misconduct, we find that AS 45.45.900 would disallow indemnity in
this case. Alaska Statute 45.45.900 voids indemnity clauses in
construction-related contracts when they purport to indemnify the
promisee against liability from the sole negligence "of the
promisee or the promisee's agents, servants or independent
contractors who are directly responsible to the promisee." In
this case, the jury found Crane's accident 95% attributable to
the negligence of Wright and 5% attributable to the negligence of
Crane, who was employed by Wright's subcontractor, Cochran.
Since Crane was employed by a subcontractor of Wright, he falls
into the category of "[Wright's] agents, servants or independent
contractors who are directly responsible to [Wright]."11 AS
B. The Trial Court Did Not Abuse Its Discretion in
Awarding Marion 20% of Its Attorney's Fees
Marion cross-appeals the lower court's decision to
award Marion 20% of its attorney's fees. An award of attorney's
fees is reviewed for abuse of discretion. Irving v. Bullock, 549
P.2d 1184, 1190 (Alaska 1976). In this case, where the
prevailing party received no money judgment and the case did not
go to trial, the court awarded Marion 20% of its total fees
pursuant to Alaska Civil Rule 82. The court "[saw] no reason to
vary from the presumptive Rule 82 formula." Marion argues that
an enhanced award is compelled by "the complexity of the facts
and issues, the extremely high monetary stakes involved, and the
underlying need to vindicate the public policy announced in [AS
45.45.900]." Marion cites no authority for the proposition that
any of these factors compel an enhanced fee award, however. We
find no abuse of discretion and therefore affirm the award.
Because the indemnity Aetna seeks is prohibited by
AS 45.45.900, we AFFIRM summary judgment for Marion. We also
AFFIRM the trial court's award of attorney's fees.
1 See Ariz. Rev. Stat. Ann. 34-226; Cal. Civ. Code
2782, 2782.5; Conn. Gen. Stat. 52-572k; Ga. Code Ann. 20-504;
Hawaii Rev. Stat. 431:10-222; Idaho Code 29-114; Ill. Ann.
Stat. ch. 740, para. 35/1; Ind. Code Ann. 26-2-5-1; Md. Code
Ann., Cts. & Jud. Prac. 5-305; Mich. Comp. Laws Ann. 691.991;
N.M. Stat. Ann. 56-7-1; S.C. Code Ann. 32-2-10; S.D. Codified
Laws Ann. 56-3-18; Tenn. Code Ann. 62-6-123; Utah Code Ann.
13-8-1; Va. Code Ann. 11-4.1; Wash. Rev. Code 4.24.115; W.
Va. Code 55-8-14.
2 The Washington statute voids certain types of indemnity
clauses in agreements "in, or in connection with or collateral
to, a contract or agreement relative to the construction . . .
of, any building." Wash. Rev. Code 4.24.115.
3 The Illinois statute voids certain indemnity clauses in
"contracts or agreements . . . for the construction . . . of a
building [or] structure . . . or other work dealing with
construction." Ill. Ann. Stat. ch. 740, para. 35/1.
4 On this point, however, it is relevant to note that both
the lease agreement and the indemnity clause at issue here refer
to Marion as "SUBCONTRACTOR"and Wright as "CONTRACTOR."
5 The Tennessee statute voids indemnity clauses that save
harmless an indemnitee from its sole negligence in agreements "in
or in connection with or collateral to a contract . . . relative
to the construction . . . of a building." Tenn. Code Ann. 62-6-
6 Indiana's statute voids indemnity clauses in any
agreement "contained in, collateral to, or affecting any [non-
highway] construction . . . contract"where the clause purports
to relieve the indemnitee from sole negligence. Ind. Code Ann.
7 In the days before such anti-indemnity statutes, it was
common practice for general contractors to obtain indemnity
agreements from their subcontractors. State legislatures
believed that such agreements led the indemnitee to be less
careful and thereby increased the incidence of accidents at the
worksite. The legislative response was the enaction of anti-
indemnity statutes. McMunn, 791 F.2d at 92 (citing Fort Wayne
Cablevision v. Indiana & Mich. Elec. Co., 443 N.E.2d 863 (Ind.
App. 1983)); see also Stein, et al., Construction Law
8 The court deemed that the loader was typically used for
snow removal and highway construction, which was not covered by
the statute. 791 F.2d at 93.
9 Like Washington and Tennessee, Michigan voids certain
indemnity clauses in agreements "in, or in connection with or
collateral to, a contract or agreement relative to the
construction . . . of a building." Mich. Comp. Laws Ann.
10 Borg-Warner involved the interpretation of former
AS 09.16.010(c), which barred contribution in the case of "any
tortfeasor who has intentionally caused an injury."
11 We reserve decision on the question whether the term
"sole negligence"in the statute relates only to the negligence
of the promisee, those for whom the promisee is responsible, and
the promisor, or whether third-party negligence is also meant to