United States District Court, District of Columbia
F. Hogan Senior United States District Judge.
Great-West Life & Annuity Insurance Company
(“Great-West” or Defendant) has moved to preclude
the United States Conference of Mayors and United States
Mayor Enterprises, Inc. (collectively, “the
Mayors” or Plaintiffs) from presenting evidence,
testimony, and argument relating to categories of damages
that Great-West claims their contract excluded in what
Great-West argues is an exclusive remedies provision
governing all claims in the contract. Def. Mot. in
Limine to Exclude Improper Damages Evidence, Testimony,
and Argument, at 1-2, ECF No. 98 (hereinafter Mot. to
Exclude). Plaintiffs respond that Great-West refers to
language that appears in the contract's indemnification
section and refers to third-party claims, but not to disputes
arising between the parties. Each party argues that the
contract unambiguously supports its view. Upon consideration
of the motion, opposition, contract language, and relevant
case law, the Court agrees with that the contract is
unambiguous and finds that Plaintiffs have the better
reading. Therefore, Defendant's Motion is denied.
parties are familiar with the facts relevant to this motion.
Nevertheless, a brief recitation is appropriate. The United
States Conference of Mayors (“USCM”) is “a
non-partisan organization of cities with populations of 30,
000 or more.” Am. Compl. ¶ 5, (ECF No. 22).
USCM's wholly-owned subsidiary, United States Mayor
Enterprises, Inc., markets certain products to cities and
their employees, such as deferred compensation and retirement
products and services. Id. ¶¶ 2, 6. In
2012, Plaintiffs entered into two contracts with Defendant
Great-West relating to USCM's Retirement Program: (1) a
License Agreement between USCM and Great-West, and (2) a
Joint Marketing and Training Agreement (“JMTA”)
between USME and Great-West (collectively, the
“Agreements”). Id. ¶¶ 1, 16.
Both Agreements included an initial ten-year term. JMTA
¶ 4.1; License Agreement ¶ 6.1.
December 2015, Plaintiffs notified Great-West of their
intention to terminate the Agreements for cause due to
Great-West's non-payment and other contractual breaches.
Am. Compl. ¶ 28. The parties initially agreed to
mediation as set forth in the Agreements' dispute
resolution provisions, but were unable to agree whether the
mediation should take place in Washington, D.C., or Denver,
Colorado. March 15, 2016 Letters to JAMS (ECF Nos. 9-12 &
9-13). Plaintiffs filed their Complaint on April 7, 2016.
(ECF No. 1). Defendant challenged venue, but on August 31,
this Court found Defendant had failed to show that
considerations of convenience and interests of justice
weighed in favor of transfer. Plaintiffs filed their First
Amended Complaint on September 30, 2016, alleging breach of
contract and breach of implied covenant of good faith and
fair dealing. Am. Compl. ¶¶ 29-38 (ECF No. 22).
Defendant filed its Answer and Counterclaim to the Amended
Complaint on October 17, asserting counterclaims for breach
of contract, breach of implied covenant of good faith and
fair dealing, and unjust enrichment, (ECF No. 26), and
Plaintiffs filed their Answer on October 28, (ECF No. 28).
Agreements include many provisions not at issue in this
Motion. The question currently before the Court is whether
the parties contracted to limit the types of damages they
could seek if a dispute arose between them. Mot. to Exclude
at 4. The Court finds that the parties did not and so denies
contract is not ambiguous merely because the parties do not
agree over its meaning, and courts are enjoined not to create
ambiguity where none exists.” Hensel Phelps Constr.
Co. v. Cooper Carry Inc., 861 F.3d 267, 272 (D.C. Cir.
2017). In interpreting contracts, “D.C. courts
‘adhere to an objective law of contracts.'”
Id. (quoting Carlyle Inv. Mgmt. LLC v. Ace Am.
Ins. Co., 131 A.3d 886, 1894-95 (D.C. 2016)). “The
writing must be interpreted as a whole, giving a reasonable,
lawful, and effective meaning to all its terms, and
ascertaining the meaning in light of all the circumstances
surrounding the parties at the time the contract was
made.” Id.; see also United States v. Bank
of Am., 78 F.Supp.3d 520, 527 (D.D.C. 2015) (“[A]
cardinal principle of contract construction [is] that a
document should be read to give effect to all its provisions
and to render them consistent with each other.”). The
language should be understood according to its “plain
meaning.” Id. (citing Debnam v. Cran
Co., 976 A.2d 193, 197 (D.C. 2009)). Only ambiguous
contract provisions require the factfinder to weigh in on the
correct interpretation. Debnam, 976 A.2d at 197-98.
So, to begin “courts determine what a reasonable person
in the position of the parties would have thought the
disputed language meant.” Hensel Phelps, 861
F.3d at 272; see also Steele Foundations, Inc. v. Clark
Constr. Group, Inc., 937 A.2d 148, 154 (D.C. 2007)
(“Fundamentally, when interpreting a contract, the
court should look to the intent of the parties entering into
parties are free to enter into indemnification agreements . .
. such agreements are narrowly construed by courts ‘so
as not to read into [them] any obligations the parties never
intended to assume.'” Rivers & Bryan, Inc.
v. HBE Corp., 628 A.2d 631, 635 (D.C. 1993) (quoting
Haynes v. Kleinewefers & Lembo Corp., 921 F.2d
453, 456 (2d Cir. 1990)). Indeed, “to find that a party
contracted away its own liability by receiving full indemnity
therefor, there must be clear intention to do so that is
apparent from the fact of the contract.” Id.;
cf. United States v. Seckinger, 397 U.S. 203, 212
(1970) (“In short, if the United States expects to
shift the ultimate responsibility for its negligence to its
various contractors, the mutual intention of the parties to
this effect should appear with clarity from the face of the
argues that exclusive remedy provisions are common,
“often limiting speculative and uncertain damages
caused by parties' unrealized hopes.” Mot. to
Exclude at 4. But the citations supporting this proposition
are not instructive in this case. The problem in this case is
not whether it is possible to bargain for an exclusive
remedies provision, but rather, whether it is clear from the
face of the contract that the parties in this case actually
did. And contract interpretation in the context of liquidated
damages and exclusive remedies, as much as in the context of
indemnification and contracts more broadly, relies on a close
examination of the contract at issue, as a whole, in context.
See Am. Bldg. Maintenance Co. v. L'Enfant Plaza
Props., Inc., 655 A.2d 858 (D.C. 1995) (“[T]he
cardinal rule of interpretation [of contracts] is to
ascertain, if possible from the instrument itself, the
intention of the parties, and to give effect to that
intention.”). Indeed, parties may contract to provide
that one of them “‘will protect the other from
litigation costs or claims brought by third persons as well
as from claims between themselves' and that ‘when
[such a right] is established by contract, the contract
controls, so that attorney fees are awarded under such
contracts with no difficulty.'” James G. Davis
Constr. Corp. v. HRGM Corp., 147 A.3d 332, 339 (D.C.
2016) (quoting 1 Dan B. Dobbs, Law of Remedies
§ 3.10 (3), at 402-03 (2d ed. 1993)).
to the text of the contract, several provisions are
informative. First, the contract itself admonishes that
“[a]ll headings in this Agreement are intended solely
for convenience of reference and shall not affect the meaning
or interpretation of the provisions hereof.” Ex. A at 2
§ 1.2, (ECF No. 98-1). Second, the disputed sections are
6. In ...