Nicole Melvani (Of Counsel-Mclean, VA) and Hariton Wilson (Associate-McLean, VA) obtained summary judgment in the Superior Court of the District of Columbia in favor of Wilson Elser’s client, a moped rental service company. The client held a District of Columbia-issued public right-of-way occupancy permit allowing it to park mopeds, available for rent through a mobile app, in designated lanes across the District. The plaintiff alleges that while riding home from work on the rented moped, she encountered potholes on the road in the District, causing her to fall and sustain injuries. The plaintiff sued the District for negligence, alleging a failure to repair and maintain the roadway after receipt of notice regarding the potholes. In addition, the plaintiff alleged negligence and product liability claims against our client. Nicole and Hariton successfully moved to compel the plaintiff’s claims against the client to arbitration based on the rental agreement’s arbitration provisions. Still, the plaintiff ultimately elected not to pursue the arbitration. 

The plaintiff’s negligence claim against the District proceeded, with the District filing a cross-claim against the moped rental company seeking indemnification pursuant to provisions in the public right-of-way occupancy permit. In their motion for summary judgment, Nicole and Hariton argued that the indemnification provision does not require the company to indemnify the District for claims arising out of the District’s negligence or, in the alternative, that the provision is ambiguous on that issue and as such, is unenforceable. The court agreed with Wilson Elser’s analysis and interpretation of the permit’s language, finding that whether there was an agreement to indemnify turns on the definition of the phrase “public right-of-way,” as used in the agreement. The court concurred that this key phrase is undefined and capable of multiple meanings. The court further determined that the District waived any right to indemnity when it refused to cede control of the defense when tendering the matter, rejecting the District’s assertion that it could waive the defense portion of the clause without waiving the right to indemnity. The court found that the provision is not solely for the District’s benefit and cannot be waived while retaining the indemnity requirement. Accordingly, the court granted Wilson Elser’s motion for summary judgment on behalf of the client.