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According to a Louisiana appellate court, an indemnification clause can not be enforced to require a party to indemnify  for the indemnitee’s own negligence unless the clause specifically states that to be the intent of the parties in no uncertain terms.

An equipment lease provided that the equipment lessee would indemnify the lessor for “any and all claims arising from the use of the [leased] truck.” This language, said the trial court,  was required the lessee to give full indemnity for the lessors damages under the facts of this case.   In arguing to the contrary,  the lessee/ indemnitor  argued that the lease agreement contained no dollar amount for the lease.  Without a dollar amount, the lessee asserted the lease could not be binding.   Another argument offered by the lessee was that its corporate officer that signed the lease did not read it before signing.  In fact, the lessee claimed that in 25 years of signing leases, this officer had never read one.   Moreover, the contractor claimed that the officer   “never contemplated entering into an indemnity agreement when he signed the purported lease and merely thought of that document as a form that accompanied delivery of two pieces of equipment loaned [to his firm].” Without addressing these two arguments, the court turned to a completely different reason for why it would not enforce the indemnity agreement.

The indemnification language did not state in clear and unequivocal terms an intent by the parties that the lessee indemnify and hold harmless the lessor  from its own negligence. In explaining its decision, the court stated: “A contract of indemnity, whereby the indemnitee is indemnified against the consequences of his own negligence, is strictly construed and such a contract will not be construed to indemnify an indemnitee against losses resulting to him through his own negligent acts unless such an intention is expressed in unequivocal terms.” In addition,  the court stated that “if the intention to indemnify against an indemnitee’s liability for his negligence is equivocal, there is a presumption that the parties did not intend to indemnify an indemnitee against losses resulting from his own negligent act.”

In explaining its opinion, the court stated that it was adhering to the majority view of courts holding that general words such as “any and all liability” are not sufficient clear and unambiguous so as to find an intent to impose an obligation so extraordinary and harsh as to render an indemnitor liable for damages caused by the sole negligence of the indemnitee. “In cases in which the indemnity clause does not expressly provide that the indemnitor will indemnify the indemnitee for the indemnitee’s own negligence, the courts have found no duty to indemnify for causes of action arising form such negligence.”  Finding this clause to contain only general language, the court found it could not impose the broad indemnification that was claimed.

Guyon and Kathy Adams v. Falcon Equipment Corporation and Homestead Insurance Co., 717 So. 2d. 282 (1998, Ls. App.)

Article Copyright  ã 1999, ConstructionRisk.com, LLC – Virginia.

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 1, No. 2 (May 1999).