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48 La. L. Rev. 169 (1987-1988)
Judicial Interpretation of Indemnity Clauses

handle is hein.journals/louilr48 and id is 180 raw text is: JUDICIAL INTERPRETATION OF INDEMNITY CLAUSES Indemnity clauses are found in most construction and maintenance contracts, and are sometimes referred to as hold harmless agreements.' In fact, indemnity clauses are standard provisions in the model contract forms of the American Institute of Architects and the Engineer's Joint Contract Documents Committee.2 They are used primarily as a means of allocating the risks of a project among the parties involved. Without these contractual provisions, those risks might be apportioned years later by a jury acting on equitable grounds.3 By fixing liability at the time of the contract, the parties can anticipate the scope of their obligations and plan accordingly. Thus, each party can obtain the proper amount of insurance and accurately calculate his costs of the venture. Indemnity clauses are a constant source of litigation in Louisiana. A typical indemnity clause provides: Contractor agrees to defend, indemnify and hold harmless com- pany, its officers and employees, from and against any and all claims and causes of action and all losses on account of any personal injury or death or property damage arising out of or in any way related to the performance of the Contractor or any sub-contractor of the Contractor of services hereunder.4 Indemnity clauses take one of three general forms, varying only in the amount of responsibility assumed by the contractor. In the basic indemnity clause, the contractor/indemnitor agrees to bear the cost of defending any suit and paying any judgment against the owner/indem- nitee arising out of any negligent acts or omissions of the contractor. In other agreements, the contractor also agrees to take responsibility for any damages arising from the concurrent negligence of the owner and the contractor. Finally, in the broadest form of indemnity clause, the contractor agrees to assume responsibility for, all damage, even that caused solely by the owner's negligence. Problems often arise because the indemnity clause fails to clearly indicate which level of liability the contractor has assumed. In the absence Copyright 1987, by LOUISIANA LAW REVIEW. 1. Similar clauses are found in many types of contracts. This paper focuses on a line of cases involving the relationship between owners and contractors. 2. 3 S. Stein, Construction Law 13.17, at 13-122 (1986). 3. Id. 4. See, e.g., Polozola v. Garlock, Inc., 376 So. 2d 1009 (La. App. 1st Cir. 1979), writ denied, 379 So. 2d 1103 (La. 1980); Arnold v. Stupp Corp., 205 So. 2d 797 (La. App. 1st Cir. 1967), writ denied, 251 La. 936, 207 So. 2d 540 (1968).

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