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23 Constr. Law. 26 (2003)
Fifty-State Survey of Anti-Indemnity Statutes and Related Case Law

handle is hein.journals/conlaw23 and id is 122 raw text is: INDEMNITY Fifty-State Survey of Anti-indemnity Statutes and Related Case Law Allen Holt Gwyn and Paul E. Davis Allen Holt Gwyn The April 1992 issue of The Construction Lawyer sur- veyed a number of states on anti-indemnity statutes affect- ing the construction industry. Those authors' discussed measures that state legislatures had enacted to curb what was perceived as a disturbing trend-parties that controlled the work requiring their weaker contracting partners to indemnify them, despite the latter's own negligence. That article focused on statutory restrictions for such indemnifi- cation. This article updates it. Since 1992, a handful of states have come on board, and others have further restricted the ability of the parties to various construction contracts from requiring other parties to indemnify them for their own negligence. We also have added discussions of common law limitations on the right to be indemnified against one's own negligence, whether workers' compensation statutes bar such indemnification, and whether a contractual requirement to name the indem- nitee as an additional insured circumvents an anti-indemni- ty statute. It is quite common in construction contracts for the par- ties to include broad indemnity provisions requiring one party to indemnify the other for certain losses and expenses incurred on the project.2 Courts closely scrutinize indemni- ty provisions, and generally will enforce them only if the obligation to indemnify the at-fault indemnitee is clear and unequivocal.3 Further restricting the ability of parties to agree contractually to indemnify one another are statutes in Allen Holt Gwyn and Paul E. Davis are lawyers with the firm of Conner Gwyn Schenck, in Greensboro and Raleigh, North Carolina, respectively. Mr. Gwyn is a past chair of the ABA Forum on the Construction Indus- try. Messrs. Gwyn and Davis would like to thank David Peitsch of Haywood Baker in Odenton, Maryland, and the contributors for each state for their efforts in devel- oping the fifty-state survey. thirty-eight states. These anti-indemnity laws can be placed into three different categories.4 The scope of the statutes in these thirty-eight states is discussed below and summarized in the chart that follows. 5 Type 1: Statutes Barring Indemnity for Indemni- tee's Sole Negligence The first form of anti-indemnity statute voids provisions for losses or damages arising from the indemnitee's sole neg- ligence. This is the most common type of legislation, present in eighteen states,6 and the Michigan statute is typical: A covenant, promise, agreement or understanding in, or in connection with or collateral to, a contract or agreement rela- tive to the construction, alteration, repair or maintenance of a building, structure, appurtenance and appliance, including moving, demolition and excavating connected therewith, pur- porting to indemnify the promisee against liability for dam- ages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee or indemnitee, his agents or employees, is against public policy and is void and unenforceable.' The question sometimes arises as to the scope of the pro- hibition-whether an indemnity agreement may be inter- preted to bar only a part of the obligation. In Ford v. Clark Equip. Co.,' the court upheld a clause despite the application of the anti-indemnity statute and the presence of an obliga- tion to protect the indemnitee for its sole negligence. In this case, the provision9 contained two promises: one for the buyer's sole negligence and the second if the injury was caused in part by the negligence of the buyer. The court struck down only the initial promise. The latter part extend- ed only to shared responsibility and therefore survived. Several Type I anti-indemnity statutes also bar indemni- fication for the indemnitee's willful misconduct. Such states include Alaska, California, Hawaii, and Indiana. Type II: Statutes Barring Indemnity for Indemnitee's Negligence The second version of anti-indemnity statute voids pro- visions for losses or damages arising from the indemnitee's negligence, whether sole or concurrent. At least sixteen states have enacted such legislation;10 Illinois is typical: With respect to contracts or agreements, either public or pri- vate, for the construction, alteration, repair or maintenance of a building, structure, highway bridge, viaducts or other work dealing with construction, or for any moving, demolition or excavation connected therewith, every covenant, promise or agreement to indemnify or hold harmless another person from that person's own negligence is void as against public policy and wholly unenforceable.' The Illinois Supreme Court has not interpreted this statute broadly. In Liccardi v. Stolt Terminals, Inc.,2 the THE CONSTRUCTION LAWYER Summer 2003

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