Opinion
February 17, 1998
Appeal from the Supreme Court, Bronx County (Stanley Green, J.).
The court correctly perceived that under the appealing parties' Terminal Access Agreement, Texas Eastern, the supplier of the liquid propane gas that plaintiffs in the main action allege was not properly odorized, was required to supply Quantum, an indirect distributor of the gas to plaintiffs' employer, with liquid propane gas containing malodorant sufficient to meet the Federal standards; that Quantum had no obligation to indemnify Texas Eastern for noncompliance with the Federal standards unless its agent or representative ordered non-odorized or "unstenched" liquid propane; and that there was no evidence of any such request. Undoubtedly, under paragraph 6 of the Terminal Access Agreement, the delivery truck driver had some obligation to make sure that the liquid propane being loaded onto the truck was properly odorized. However, there are at least three indemnity provisions written into other parts of the contract, and the drafter's failure to include an indemnity provision in paragraph 6 precludes Texas Eastern's contractual indemnity claims (see, Margolin v. New York Life Ins. Co., 32 N.Y.2d 149, 153; White/Tishman E. v. Banko, 171 A.D.2d 401, 402, lv denied 78 N.Y.2d 857; Mobil Oil Corp. v. Wellpoint Dewatering Corp., 110 A.D.2d 1085, 1086).
Concur — Sullivan, J. P., Rubin, Mazzarelli and Andrias, JJ.