Where a subcontracted laborer brought personal injury action against a general contractor (GC), the GC filed suit against subcontractor to require it to indemnify it for any damages awarded against it. The laborer alleged he was injured from toxic fumes while performing excavation work. The GC filed a motion for summary judgment on its contractual indemnification claim, which motion was denied because the court concluded it was premature to decide it before discovery was completed and a determination could be made as to whether the subcontractor caused the damages. This was based on an indemnification clause that required the subcontractor to indemnify the GC “against all claims, damages, losses and expenses … caused by, arising out of, in connection with, or resulting from the performance of the Subcontractor’s Work under this Subcontract, where any such claim … [is attributable to bodily injury or property damage] and is caused by or arises in whole or in part, from any negligent or non-negligent act or omission of the Subcontractor….”
The court concluded that the words “caused by” subcontractor in the second half of the indemnity provision mean that the subcontractor is only obligated to indemnify if it caused the damages, but that if that is not the clear intent then the clause must at most be found ambiguous as to whether the subcontractor must indemnify the GC for the GC’s own negligence. The court agreed that a decision concerning indemnification would have to await completion of discovery at the earliest. Parker v. John Moriarty & Associates v. Strittmatter Metro, LLC, 2016 WL 2992049 (U.S. D.C. District of Columbia, 2016).
In its analysis of the arguments, the court stated,
“In the District of Columbia, parties are free to enter into indemnification contracts.” [citation omitted] “An indemnity provision, however, ‘should not be construed to permit an indemnitee to recover for his [or her] own negligence unless the court is firmly convinced that such an interpretation reflects the intention of the parties.’” [citation omitted]. “If a party ‘expects to shift responsibility for its negligence … the mutual intention of the parties to this effect should appear with clarity from the face of the contract.’ ” “The question then is whether [a] contract provision clearly reflects such a purpose.” (emphasis added). “Thus, if the alleged intention to provide this type of protection for the indemnitee is at all ambiguous, this standard is not satisfied.”
The court here concluded that the indemnity provision requires both that the loss arise out of the subcontractors work under the subcontractor agreement and also that the loss be “caused by or arise in whole or in part” by some act or omission of the subcontractor.” At best, the court concludes that the contract provision is ambiguous as to whether it obligates the subcontractor to indemnify the GC if the damages were caused by negligence of the GC as alleged in the underlying complaint in the matter.
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. 19, No. 4 (April 2017).
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