Kindercare

MEMORANDUM

American International Specialty Lines Insurance Company and Employers Insurance Company of Wausau (American International) appeal the district court’s entry of summary judgment indemnifying Kindercare Learning Centers, Inc. (Kind-ercare) for its own negligence in connection with injuries sustained by Nicholas Dawson. The district court ruled that an indemnity provision contained in a separate writing was incorporated by reference into a contract between Kindercare and the insured, School Specialty, that it was unambiguous, and that it was conspicuous.

Under Oregon law, “[wjhen a written contract refers in specific terms to another writing, the other writing is part of the contract.” Garrett v. State Farm Mut. Ins. Co., 112 Or.App. 539 , 829 P.2d 713, 716 (1992). The contract executed by Kindercare and School Specialty states, “This Agreement shall provide pricing and discount terms to supplement the vendor information packet executed by School Specialty on January 25, 2002.” Even though School Specialty’s vendor information packet itself was rejected by Kinder-care and so did not result in the formation of a contract at that time, its terms are clearly and…