Appeals from the Superior Court of the District of Columbia. (Hon. Paul R. Webber III, Trial Judge).
Before Schwelb and Farrell, Associate Judges, and Greene, Associate Judge of the Superior Court of the District of Columbia.*
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge: Invoking different provisions in the same indemnification agreement, each of two successful defendants in a "slip-and-fall" lawsuit has sought payment of its counsel fees from its codefendant. Each defendant has denied, on the other hand, that it has any obligation to indemnify its co-defendant for the codefendant's counsel fees. We hold that under the terms of the parties' contract, properly construed, neither party has a right to indemnification.
L'Enfant Plaza Properties, Inc. and Loews Washington Hotel Corp. (collectively L'Enfant) *fn1 own and manage the L'Enfant Plaza Hotel in southwest Washington, D.C. At all times relevant to this dispute, American Building Maintenance Company of New York (ABM) provided janitorial and related services to L'Enfant pursuant to a written service agreement.
On March 19, 1991, Michele Saranovich filed suit against L'Enfant, alleging that she had slipped and fallen on the marble floor of the hotel lobby, and that she had suffered personal injuries on account of L'Enfant's negligence. L'Enfant filed an answer, in which it denied negligence, and a third-party complaint against ABM, in which it sought indemnification. L'Enfant claimed in essence that it had exercised due care, and that if Ms. Saranovich's allegations regarding the accident were correct, then her injuries resulted from ABM's negligence, not L'Enfant's. ABM responded to the third-party complaint by denying negligence and by cross-claiming against L'Enfant for indemnification. Ms. Saranovich filed an amended complaint in which she named both L'Enfant and ABM as defendants and alleged negligence on the part of both.
The case went to trial and, on April 8, 1993, the Judge directed a verdict in favor of both defendants. The judgment established that no negligence had been proved on the part either of L'Enfant or of ABM. Both parties against whom a claim for indemnification has been made have thus been exonerated of any tortious conduct. No appeal was taken from the judgment.
Paragraph 8 of the Janitorial Service Agreement between L'Enfant (as Owner) and ABM (as Contractor) provides in pertinent part as follows:
 Contractor shall indemnify and hold harmless Owner from claims for injury, death and property damage due to negligent acts and omissions of Contractor, its agents and employees which arise out of work performed under this Agreement.
 Owner shall indemnify and hold harmless Contractor from claims, including Workers' Compensation claims, resulting from the condition of Owner's premises or equipment.
(Bracketed numerals inserted.) *fn2 The parties vigorously contested the meaning of these provisions, with L'Enfant claiming a right to indemnification under the first and ABM asserting that it was entitled to indemnification under the second. The Judge issued two written decisions construing the agreement, one on July 1, 1993 and a second on September 21, 1993. The Judge ruled that Clause 1 is plain and unambiguous and that "it is clear that the parties intended for the indemnification clause to become effective upon the filing of a claim." He held that " finding of negligence is not required to trigger the indemnification clause as ABM contends; a filing of a claim due to the alleged negligence of ABM, its agents, or employees is." *fn3 The Judge also invoked the principle that "when the negligence of one tortfeasor is primary, and that of the other is secondary, the latter is entitled to indemnification from the former." He concluded that "as the alleged secondary tortfeasor, [L'Enfant] . . . is entitled to indemnification by the alleged primary tortfeasor, ABM." (Id.)
With respect to Clause 2, the Judge concluded that the "more ambiguous" term "condition" should not be construed as making L'Enfant responsible even for conditions which it did not create. Such a construction, according to the Judge, would "shift the burden of ABM's negligence to L'Enfant], which is precisely adverse to the contract's terms." Accordingly, the Judge held that ABM was not entitled to indemnification.
On October 27, 1993, in conformity with his construction of the agreement, the Judge awarded L'Enfant a total of $16,462.19 in fees and costs, including $15,092.00 in counsel fees. ABM filed separate timely ...