These materials were produced by Rose & deJong, S.C. for informational purposes only and should not be construed as legal advice concerning indemnification clauses or otherwise. This information may become outdated or superseded as time goes by, and it is important to research the current laws in your jurisdiction. Use of, and access to, these materials does not create an attorney-client relationship between the reader or user and Rose & deJong, S.C.
|wdt_ID||State||Cover Own Negligence?||Legislative Limits / Exceptions||"Hold Harmless" Synonymous With Indemnification?||Direct vs. 3rd Party Claims|
|1||Alabama||Agreements by which one party agrees to indemnify another for the consequences of the other’s acts or omissions are carefully scrutinized. Therefore, an agreement by one person to indemnify another for their own negligence is enforceable only if the indemnity provisions are unambiguous and unequivocal
– Montgomery v. JYD International, Inc., 534 So. 2d 592, 594 (Ala. 1988).
|No Statute||Unaddressed by courts||Unaddressed by courts|
|3||Alaska||With regard to an indemnification agreement which purports to indemnify a party for its own negligence, the interpretation of such clause varies depending upon the nature of the contract. For example, when interpreting an indemnity provision in a commercial contract, courts apply the “reasonable construction rule” rather than the general rule that indemnity clauses for one’s own negligence should be strictly construed.
– see Manson-Osberg Co. v. State, 552 P.2d 654, 659 (Alaska 1976); Stephan & sons v. Municipality of Anchorage, 629 P.2d 71, 74 (Alaska 1981).
|ALASKA STAT. § 45.45.900||Unaddressed by courts||Unaddressed by courts|
|4||Arizona||An indemnity contract is strictly construed and does not protect against one’s own negligence unless expressed in clear and unequivocal terms. Where an indemnity provision is silent regarding the indemnitee’s negligence, the indemnitee is entitled to indemnification for loss resulting from passive negligence but not active negligence.
– see Washington Elementary School Dist. No. 6 v. Baglino Corp., 817 P.2d 3, 6 (Ariz. 1991).
|ARIZ. REV. STAT. ANN. §§ 32-1159, 34-226, 41-2586||“Agreements to indemnify or hold harmless are essentially the same . . . .”
– see 1800 Ocotillo, LLC v. WLB Grp., Inc., 219 Ariz. 200, 203, 196 P.3d 222, 225 (2008).
|Unaddressed by courts|
|5||Arkansas||Agreements to indemnify an indemnitee against its own negligence are generally disfavored, closely scrutinized, strictly construed, and will not be upheld unless expressed clearly and unequivocally.
– see Potlatch Corp. v. Missouri Pac. R.R., 321 Ark. 314, 321, 902 S.W.2d 217, 222 (Ark. 1995); Arkansas Kraft Corp. v. Boyed Sanders Constr. Co., 298 Ark. 36, 39, 764 S.W.2d 452, 453 (Ark. 1989).
|ARK. CODE ANN. §§ 4-56-104, 22-9-214||Unaddressed by courts||For direct claims to be covered, the intent to do so must be clearly and unequivocally expressed in the indemnification agreement.
“While the contract does not contain the specific words ‘directly or indirectly on account of injuries to persons arising or resulting from the work performed or provided, including liabilities imposed by separate indemnity agreements’ or like expressions, appellee asks us to find this equivalent clear intent from the broad language of the instrument. . . . Although this meaning might be considered a possibility it is not spelled out specifically in the contract and must be read into it.”
– see Weaver-Bailey Contractors, Inc. v. Fiske-Carter Constr. Co., 9 Ark. App. 192, 196, 657 S.W.2d 209, 211 (Ark. Ct. App. 1983).
|6||California||Generally (but not always), California courts agree to provide indemnity for own negligence if the parties use sufficiently specific and explicit language that is strictly construed against the indemnitee.
– see E. L. White, Inc. v. City of Huntington Beach, 21 Cal. 3d 497, 507, 579 P.2d 505, 511 (1978).
|CAL. CIV. CODE § 2782||California courts have held that indemnify and hold harmless confer distinct rights: (1) “Indemnify” is an offensive right, allowing the indemnified party to seek indemnification from the indemnifying party; (2) “Hold harmless” is a defensive right, protecting the indemnified party from being bothered by the other party seeking indemnification against it.
– see Queen Villas Homeowners Assn v. TCB Prop. Mgmt., 149 Cal. App. 4th 1, 9, 56 Ca. Rptr. 3d 528, 533 (2007).
|Indemnification agreements ordinarily relate to third party claims. But this general rule does not apply if the parties to a contract use the term “indemnity” to include direct liability as well as third party liability. An indemnity agreement is to be interpreted according to the language and contents of the contract as well as the intention of the parties as indicated by the contract.
– see Dream Theater, Inc. v. Dream Theater, 124 Cal. App. 4th 547, 555 21 Cal. Rptr. 3d 322, 328 (2004), as modified on denial of reh’g (Dec. 28, 2004).
|7||Colorado||An agreement purporting to indemnify a party against liability for its own negligence will be enforced as written as long as it contains a clear and unequivocal expression that the parties intended that result.
– Constable v. Northglenn, LLC, 248 P.3d 714, 716 (Colo. 2011).
|COLO. REV. STAT. §§ 13-50.5-102, 13-21-111.5||Colorado courts have used the terms interchangeably, but still be cautious in your decision to include or exclude particular terms.
– see, e.g., Constable v. Northglenn, LLC, 248 P.3d 714, 716 (Colo. 2011) (“An agreement to indemnify another is an agreement by one party to hold another harmless from such loss or damage as may be specified in their contract.”).
|“As we have acknowledged in prior holdings, this kind of ‘any and all’ language obviously encompasses injuries resulting from Northglenn's own negligence.
Unlike those cases in which the intent of the parties is articulated no more expressly than this, however, it is not necessary here to derive an intent to indemnify against injuries for which Northglenn was itself responsible from this broad language alone. The agreement's additional express exclusion of Northglenn's ‘own gross negligence or intentional torts’ from Constable's indemnity obligation is an even clearer indication that in using broad language of liabilities generally the parties contemplated liability resulting from the fault of Northglenn, as well as anyone else.”
– Constable v. Northglenn, LLC, 248 P.3d 714, 717 (Colo. 2011) (emphasis added) (citations omitted).
Note: The language in the case appears broad enough to suggest that if the intention of the parties is clear, then an indemnification provision can protect against any claim which would include third party claims, claims of negligence, or direct claims.
|8||Connecticut||An indemnification clause that purports to cover the indemnitee’s own negligence will be enforced if the intention of the parties to do so is expressed in clear and unequivocal language. The language “indemnify . . . against all liabilities” is broad enough to indemnify for one’s own negligence because the word “‘all’ leaves no room for exceptions.”
– see Burkle v. Car and Truck Leasing Co., Inc., 1 Conn. App. 54, 56–57, 467 A.2d 1255, 1256–57 (1983).
|CONN. GEN. STAT. § 52-572k||Connecticut courts generally interpret “hold harmless” to be synonymous with indemnification.
– see Vibert v. Bd. Of Educ., 260 Conn. 167, 173 (Conn. 2002); Brentnal v. Holmes, 1 Root 291, 292 (Conn. Super. Ct. 1791).
|“[A]n action for indemnification is one in which one party seeks reimbursement from another party for losses incurred in connection with the first party’s liability to a third party.”
– Amoco Oil Co. v. Liberty Auto and Electric Co., 262 Conn. 142, 148, 810 A.2d 259 (2002). But see Helming & Co., P.C. v. RTR Techs., Inc., 76 Supp. 3d 363 (D. Mass. 2015) (rejecting arguments based off Amoco’s third-party/first party distinction).
|9||Delaware||Indemnification for one’s own negligence is allowed, but the contract “must clearly and unequivocally spell out the intent to grant such immunity.”
– see Blum v. Kauffman, 297 A.2d 48, 49 (Del. 1972).
|DEL. CODE ANN. tit. 6, § 2704||Delaware courts generally interpret “hold harmless” to be synonymous with “indemnification.”
– see Majkowski v. American Imaging Management Services, LLC, 913 A.2d 572, 589–590 (Del. Ch. 2006).
|Each provision is unique and should be decided under all of the particular facts and circumstances of that case.
– see TranSched Sys. Ltd. v. Versyss Transit Sols., LLC, No. CIV.A. 07C-08-286 WCC, 2012 WL 1415466, at *2 (Del. Super. Ct. Mar. 29, 2012).
|10||District of Columbia||Indemnitee provision “should not be construed to permit indemnitee to recover for his own negligence unless . . . such interpretation reflects the intention of the parties . . . with clarity from the face of the contract.” Broad language is said to include such an intent because if the parties intended otherwise, they would have included a limitation.
– see N.P.P Contractors, Inc. v. John Canning & Co., 715 A.2d 139, 141–42 (D.C. 1998).
|No Statute||Unaddressed by courts||The standard indemnification clause covers claims by third parties, but whether or not it extends to attorney’s fees in first-party actions is a matter of contract interpretation.
– see James G. Davis Constr. Corp. v. HRGM Corp., 147 A.3d 332, 340 (D.C. 2016).
|11||Florida||An indemnification clause that applies to a party’s own wrongful conduct is not enforceable unless it unequivocally expresses that the party’s own negligence is covered by the agreement.
– Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 487, 489 (Fla. 1979).
|FLA. STAT. § 725.06||Indemnity agreements and exculpatory clauses have been held to mean different things. Indemnity agreements allocate risk of liability to third parties, and exculpatory clauses primarily release a party from liability from its own negligence.
– see Sanislo v. Give Kids the World, Inc., 157 So.3d 256, 265 (Fla. 2015).
There is a difference between contracts of indemnification and hold-harmless agreements. “Exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing his injury. An indemnification clause attempts to shift the responsibility for the payment of damages to someone other than the negligent party . . . .”
Kitchens of Oceans v. McGladrey & Pullen, 832 So.2d 270, 272 (Fla. App. 4 Dist. 2002).
Note: This is important to note because it could lead to those terms having a different interpretation within an indemnification agreement.
|“Generally in Florida, indemnity provisions apply only to third-party claims. . . . Contracts for direct indemnity will not be inferred; for indemnity to apply against first-party claims, the indemnification provision must clearly indicate that it applies to the acts of the other party to the contract. An indemnification provision that is silent or unclear whether it applies to first-party claims will normally be interpreted to apply only to third-party claims.”
– MVW Mgmt., LLC v. Regalia Beach Developers LLC, 230 So. 3d 108, 112 (Fla. Ct. App 2017).