Rhonda Callaway, Surviving Spouse and Next of Kin of Clintontheodore Callaway, Deceased, Plaintiff, v. Societe Des Mines et Fonderies, De Zinc De Lavieille-montagne, a Foreign Corporation,defendant-third-party-plaintiff/appellant, v. St. Joe Minerals Corporation, Third-party-defendant/appellee, 948 F.2d 1294 (10th Cir. 1991)

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Defendant and third-party-plaintiff-appellant Societe des mines et fonderies, de zinc de la Vieille-Montagne (VM) appeals from a judgment dismissing its third-party action for indemnification or contribution against third-party-defendant-appellee St. Joe Minerals Corporation (St. Joe). The primary issue before the district court on the parties' cross motions for summary judgment was whether St. Joe's agreement to indemnify VM for claims arising out of the death of any person employed by St. Joe expired before the death of Clinton Callaway, St. Joe's employee. The district court held that it did. We conclude the district court was correct. We also conclude that VM cannot obtain contribution from St. Joe and therefore affirm.

On May 28, 1987, Clinton Callaway was involved in an industrial accident while employed at St. Joe's zinc plant in Bartlesville, Oklahoma. Callaway died on June 1, 1987, as a result of his injuries. His family received workers' compensation benefits from St. Joe.

In 1988, Callaway's widow commenced an action against VM, the designer, manufacturer, and supplier of the stripping machine that was involved in Callaway's death. VM in turn filed a third-party complaint against St. Joe, alleging that in 1984 St. Joe acquired substantially all of the operating assets of National Zinc Company, the prior owner of the plant in Bartlesville. VM alleged that St. Joe had agreed to assume all of National Zinc's obligations under an agreement to indemnify VM for claims arising out of the manufacture, use, supply, or design of the stripping machine.

In reviewing a summary judgment order, we first examine the record to determine if any genuine issue of material fact was in dispute. If not, we must decide if the substantive law was correctly applied. Osgood v. State Farm Mut. Auto. Ins. Co., 848 F.2d 141, 143 (10th Cir. 1988). Based on our review of the record, we agree with the district court that there was no genuine issue of material fact in dispute and that summary judgment was appropriate.

* Oklahoma law provides that an employer's duty to provide workers' compensation "shall be exclusive and in place of all other liability of the employer ... at common law or otherwise," including liability for the death of an employee. Okla.Stat. tit. 85, § 12. This exclusive remedy provision does not apply, however, if there is an independent legal relationship between the employer and an indemnitee that creates liability "apart from a duty owed to [an] employee by [an] indemnitee and employer to keep the employee from harm's way." Harter Concrete Prods., Inc. v. Harris, 592 P.2d 526, 528 (Okla.1979) (citing Peak Drilling Co. v. Halliburton Oil Well Cementing Co., 215 F.2d 368, 370-72 (10th Cir. 1954)). An agreement between an employer and the supplier of equipment that the supplier will not be liable for injuries caused by the equipment is such an independent legal relationship. See Rucker Co. v. M & P Drilling Co., 653 P.2d 1239, 1242 (Okla.1982). Thus, if that kind of an indemnification agreement was in force at the time of Callaway's accident, the exclusive remedy provision of the workers' compensation statute would not shield St. Joe from the obligation to indemnify VM.

In the agreement at issue, referred to by the parties as the "Know-How Agreement," VM agreed to provide technical assistance and disclosure of know-how as necessary for National Zinc to use processes developed by VM to produce zinc by electrolysis. Paragraph 11.1 provides:

Parties agree that V.M. does not assume any liability for and will be held harmless by [National Zinc] in respect of any claims of whatever kind or nature for damages to property and/or injuries, including death of any person or persons employed by [National Zinc], or by any third party, directly or indirectly, during the construction period, the operation of the plant or the use of the contractual processes, the equipment or the personal assistance, pursuant to this agreement.

Appellee's Supp.App. at 22-23. Paragraph 13 provides: "This agreement shall be deemed to have been entered into on March 31, 1974, and shall terminate ten years after the plant has been put in operation."¹  Id. at 24.

In 1974, VM and National Zinc also entered into a "License Agreement" whereby VM granted National Zinc a nonexclusive license under VM's patent to utilize the zinc process at the Bartlesville plant.

In August 1984, St. Joe purchased substantially all of National Zinc's assets, including the zinc plant where the accident occurred. St. Joe assumed the rights and obligations of National Zinc under the Know-How and License Agreements. Thus, St. Joe assumed National Zinc's obligation to indemnify VM under paragraph 11.1 of the Know-How Agreement.

St. Joe argues that the indemnification provision expired ten years after the plant was put into operation pursuant to paragraph 13 of the Know-How Agreement. VM asserts that the indemnification provision remained in effect during the use of the contractual processes, that the Know-How and License Agreements must be construed together and that, because the License Agreement contemplates perpetual use of the contractual processes, the indemnification obligation lasts indefinitely.

Oklahoma has codified the following principles of contract construction: "A contract must be so interpreted as to give effect to the mutual intention of the parties, as it existed at the time of contracting, so far as the same is ascertainable and lawful." Okla.Stat. tit. 15, § 152. "The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity." Id. § 154. "When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible, subject, however, to the other provisions of this article." Id. § 155. "The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the others." Id. § 157. "Several contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together." Id. § 158.

If no ambiguity exists in the language used, intent must be determined from the words of the contract. Lindhorst v. Wright, 616 P.2d 450, 453 (Okla.Ct.App.1980). A contract is ambiguous if "it is reasonably and fairly susceptible of different constructions or ... if through vagueness of expression it has a double meaning." Cinocca v. Baxter Labs., Inc., 400 F. Supp. 527, 532 (E.D. Okla. 1975). Whether a contract is ambiguous is a question of law. Ferrell Constr. Co. v. Russell Creek Coal Co., 645 P.2d 1005, 1007 (Okla.1982).

Applying these principles to the facts of this case, we conclude that insofar as it applies to the issues before us the Know-How Agreement is unambiguous and that the indemnification provision expired ten years after the plant was put into operation. The indemnification provision, paragraph 11.1, expressly applies "during the construction period, the operation of the plant or the use of the contractual processes, the equipment or the personal assistance, pursuant to this agreement. " Appellee's Supp.App. at 23 (emphasis added). We note that paragraph 13 of the Know-How Agreement also uses the two words "this agreement"--and " [t]his agreement ... shall terminate ten years after the plant has been put in operation." Id. at 24. Our review of the record convinces us that although there was a preliminary agreement in principle, it was formalized in two agreements--the Know-How Agreement and the License Agreement. The words "this agreement" within the Know-How Agreement plainly and unambiguously refer only to the document of which they are a part. Thus, the duration of the indemnification provision is determined by examining the Know-How Agreement, not the License Agreement. Because the Know-How Agreement expired ten years after the plant was put in operation, the indemnification provision was not in force on the date of the fatal injury to Callaway, and St. Joe had no obligation to indemnify VM.² 

II

VM alternatively argues that it is entitled to contribution from St. Joe as a joint tort-feasor pursuant to Okla.Stat. tit. 12, § 832. St. Joe counters that the exclusive remedy provision of the workers' compensation law, Okla.Stat. tit. 85, § 12, bars VM's contribution claim.

We agree with VM that in Harter Concrete, 592 P.2d at 526, the Oklahoma Supreme Court did not expressly decide whether the statute allowing contribution among joint tort-feasors creates an exception to the exclusivity of the workers' compensation law. In that case the third-party plaintiff sought indemnity or contribution from an employer who had paid a workers' compensation claim to an injured employee. See id. at 527. Nevertheless, the court did expressly note that the Oklahoma contribution statute had been recently enacted. See id. at 528. The court also cited Okla. Const. art. 23, § 7, which expressly provides that for employment-related deaths recovery under the workers' compensation law "shall be exclusive." Id. at 528 n. 2. The court held that, absent special circumstances,³  an employer who had satisfied its obligations to pay workers' compensation benefits "may [not] be joined as a defendant in a third party personal injury action and thus be required to respond a second time, even though it be indirectly, to injuries the employee has sustained." Id. at 528; see also Burrell v. Rogers, 441 F. Supp. 275, 277 (W.D. Okla. 1977) (in pre-contribution statute case court assumed arguendo that contribution among joint tort-feasors existed but held this did not undermine the exclusivity of the workers' compensation law). The Harter Concrete court went on to find no independent relationship creating a duty to indemnify, and concluded that it saw "no reason to erode the exclusive character of the workers' compensation remedy." 592 P.2d at 528-29.

In the instant case, after the expiration of the Know-How Agreement, the License Agreement continued in force, and VM and St. Joe may have had other business dealings. We do not believe, however, that the Oklahoma Supreme Court would find these to be "special circumstances" justifying an exception to the exclusivity provision of the workers' compensation law. Likewise, if the Oklahoma Supreme Court were to directly decide the issue, we do not believe that it would find the contribution statute to have created the special circumstances necessary to abrogate the exclusive remedy provisions of Okla.Stat. tit. 85, § 12. We recognize that the Oklahoma Supreme Court has held that a different statute, Okla.Stat. tit. 63, § 984, which expressly imposes liability on any person who violates, inter alia, a statute prohibiting any activity within six feet of an overhead electrical line, does override the exclusive remedy provision of the workers' compensation law. Travelers Ins. Co. v. L.V. French Truck Serv., Inc., 770 P.2d 551, 554-55 (Okla.1988). That statute is distinguishable because it imposes an independent, statutorily-created duty "without regard to whether any other kind of obligation may result from the violation, i.e., responsibility to pay compensation for an employee's on-the-job injury." Id. at 554. In contrast, the contribution statute does not create an independent duty, but instead simply provides a procedural mechanism to apportion common liability among persons otherwise jointly liable.

In light of our disposition, VM's motion to strike a portion of St. Joe's brief and alternative request for permission to respond to that portion of St. Joe's brief are denied as moot. The judgment of the United States District Court for the Northern District of Oklahoma is AFFIRMED.