No. 21-1745

JOHN CARUSO,

Plaintiff,

v.

OMNI HOTELS MANAGEMENT CORPORATION, d/b/a OMNI HOTEL,

Defendant, Appellant,

ULTIMATE PARKING, LLC,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. John J. McConnell, Jr., U.S. District Judge]

Before

Barron, Chief Judge, Lipez and Gelpí, Circuit Judges.

Eli Jason S. Mackey, with whom C. Stephen Setliff, Setliff Law, P.C., Charles D. Blackman, and Levy & Blackman LLP were on brief, for appellant. Nancy Kelly, with whom Benjamin O'Grady and Gordon Rees Scully Mansukhani, LLP were on brief, for appellee.

March 2, 2023 LIPEZ, Circuit Judge. While staying at the Omni Hotel in Providence, Rhode Island, John Caruso was injured when he tripped and fell on the curb that separates the hotel's valet driveway from its main entrance. Caruso sued both the hotel's valet operator, appellee Ultimate Parking, LLC ("Ultimate"), and the hotel's owner, appellant Omni Hotels Management Corp. ("Omni"), blaming his accident on their allegedly negligent maintenance of the premises and the allegedly dangerous driveway curb. After Ultimate settled the case with Caruso on behalf of itself and Omni, Omni sought indemnification from Ultimate for its attorney's fees. The district court granted summary judgment for Ultimate on Omni's indemnification crossclaims, holding that neither the parties' contractual agreement nor Rhode Island common law entitled Omni to such relief. Caruso v. Omni Hotels Mgmt. Corp., 559 F. Supp. 3d 69, 72-73 (D.R.I. 2021). Disagreeing with the district court's reading of the parties' contract and Rhode Island law, we conclude that Omni is entitled to indemnification. We therefore vacate the judgment for Ultimate and direct the district court on remand to enter judgment for Omni.

I. A. Background

Caruso's accident occurred in May 2016 while he was helping his niece carry luggage into the Omni Hotel from her car,

- 2 - which was parked in the valet circle. In his complaint,1 Caruso alleged, inter alia, that Omni had a duty to warn guests "of the unreasonably dangerous and hidden step up/curb located within the valet circle" of the hotel and failed to "color code" the curb or otherwise "clearly demarcate" it. Caruso also alleged that Ultimate had "negligently parked vehicles within and up against the curbing of the valet circle" and thereby caused, or contributed to causing, him "to trip and fall and sustain serious personal injuries."

Ultimate operates the hotel's valet and parking services pursuant to a contract with Omni, titled "Concession Agreement," that includes provisions in which the two companies agreed to defend and indemnify each other in certain circumstances. The provision pertinent to this appeal states:

Ultimate shall indemnify and hold harmless [Omni] from and against any and all liability, claims, liens, losses, expenses and judgments of every kind whatsoever, by whomsoever asserted, on account of claims or demands of every character occurring on or in any way incident to, or arising from or in connection with any act or failure to act by Ultimate or any of its agents, contractors, servants, or employees in the operation of the Business during the term of this Agreement, provided that no such claim