persons arising out of any acts or omissions by the Contractor, his agents, servants or employes [sic] in the course of any work done . . .").
Indiana case law similarly reflects a grave reluctance to extend broad, general indemnity clauses to cover one's own negligence. Indeed, "explicit reference to the indemnitee's negligence is a prerequisite to his indemnification therefor." Indiana State Highway Comm'n, 169 Ind. App. at 28, 346 N.E.2d at 261. Like the clause in Westinghouse Electric, the indemnity clause at issue in Indiana State Highway Commission is nearly identical to the one at issue here. Id. at 25, 346 N.E.2d at 259 ("The Contractor shall indemnify [the state] from all suits, actions or claims of any character brought on account of any injuries or damages sustained by any persons or property from any neglect in safeguarding the work . . .").
Absent some more explicit indication that the rental agreement clause requires General Refractories to indemnify Gallo for Gallo's own negligence, if any, the broadly phrased, nonspecific indemnity clause in the agreement will not suffice to provide that coverage. See e.g., Westinghouse Electric, 395 Ill. at 433, 70 N.E.2d at 607; Indiana State Highway Comm'n, 169 Ind. App. at 28, 346 N.E.2d at 261.
Gallo fails to meaningfully address the dismissal arguments set forth by General Refractories with respect to the contribution claim (Count II). A brief discussion will therefore resolve the matter.
In a diversity action, the governing choice-of-law principles are those of the state in which the district court is located. McIntosh v. Magna Sys., Inc., 539 F. Supp. 1185, 1188 (N.D. Ill. 1982) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 1021, 85 L. Ed. 1477 (1941)). In tort actions, Illinois employs the "most significant relationship" test of the Restatement (Second) of Conflict of Laws. Id.; see also Ingersoll v. Klein, 46 Ill. 2d 42, 45, 262 N.E.2d 593, 596 (1970). This test dictates that in a situation where the injury occurred in Indiana, involving an Indiana citizen working for an Indiana employer using a forklift rented for use only in Indiana, Indiana law will apply.
Gallo's contribution claim must be dismissed for two reasons. First, contribution between joint tortfeasors is prohibited in Indiana. Elcona Homes Corp. v. McMillan Bloedell, Ltd., 475 N.E.2d 713, 715 (Ind. Ct. App. 1985). Second, the Illinois Contribution Act has no extraterritorial application; it does not apply to a tort that took place in Indiana. Summar v. Indiana Harbor Belt R.R., 147 Ill. App. 3d 851, 856-56a, 515 N.E.2d 130, 133, 113 Ill. Dec. 321 (1st Dist. 1986).
Because indemnification for one's own negligence is not permitted in Illinois or Indiana without a more explicit justification than Gallo has shown here, and because Gallo is not entitled to contribution, we grant General Refractories' motion for dismissal under Rule 12(b)(6). It is so ordered.