Product Update

State Construction Anti-Indemnity Statutes and Court Interpretation of Indemnity Provisions Updated in Contractual Risk Transfer

This release of Contractual Risk Transfer (CRT) contains updated discussions of state construction anti-indemnity statutes and court interpretation of indemnity provisions.

State construction anti-indemnity statutes place restrictions on the extent to which an indemnitee may seek indemnification with respect to its own negligence. The conventional alternative approaches under state construction anti-indemnity statutes are to permit either (1) indemnification to the extent of the indemnitor's negligence only or (2) indemnification for the concurrent negligence of the indemnitor and the indemnitee. This CRT release contains an updated discussion of State Construction Anti-Indemnity Statutes that discusses these approaches in greater detail and also contains updated summaries of each state's construction anti-indemnity statutes.

Indemnity provisions are often the source of much litigation due to their use as important risk transfer devices. When faced with the task of discerning the meaning and intent of an indemnification clause, courts apply rules generally applicable to all written contracts. However, because of the unique nature of indemnity provisions, particular rules of interpretation have emerged that most courts apply to these clauses, including when a court will enforce an indemnity clause in which the indemnitee is indemnified for its own negligence. This CRT release provides an updated and expanded survey of cases from the District of Columbia and the 50 states that have addressed the standard of interpretation applied to indemnity provisions for the indemnitee's own negligence.