Will Alaska enforce this construction-contract indemnity clause?
Yes, unless it tries to reach the indemnitee's own sole fault. AS 45.45.900 makes void and unenforceable, as against public policy, any construction-contract indemnity clause that purports to indemnify the promisee for death, bodily injury, property damage, or design-defect losses "from the sole negligence or wilful misconduct of the promisee or the promisee's agents, servants, or independent contractors who are directly responsible to the promisee" (with carve-outs for insurance/workers'-compensation contracts and for oil/hazardous-substance cleanup indemnities). Hoffman Construction Co. of Alaska v. U.S. Fabrication & Erection, Inc. confirms the statute's own limit and no more: "Alaska Statute 45.45.900 limits the enforceability of indemnification clauses: it requires that such clauses not be enforced if they serve to indemnify the indemnitee from its own sole negligence or willful misconduct." Outside that limit the clause is given its full width: "if an indemnity clause is broad enough it may indemnify regardless of the parties' liabilities or fault." On the facts, "[n]either part of the Providence/Hoffman indemnity clause purports to indemnify Hoffman for Providence's sole negligence. Therefore, as a matter of law, AS 45.45.900 does not invalidate the Providence/Hoffman indemnity clause."
The trap
AS 45.45.900 only reaches a clause "contained in, collateral to, or affecting a construction contract": its own text is scoped to construction; nothing read here extends it to indemnity clauses in other kinds of contracts. And the statute bars indemnifying the promisee's SOLE negligence specifically: Hoffman Construction shows a broadly worded clause (indemnity/defense for claims arising "on account of" or "in connection with" the indemnitor's work) is fully enforceable, and covers even the indemnitor's own employees' injury claims, as long as the claim does not turn out to rest on the indemnitee's sole fault; whether a claim falls within that broad SCOPE language is analyzed separately from, and before, the sole-negligence question, and Hoffman treats fault as "immaterial" to the scope question. Two refinements decide real cases. The statute bites only on application, not on drafting: a theoretical possibility that the clause could be applied to the indemnitee's own fault does not invalidate it, and the section comes into play only where the clause is in fact applied, as between the parties, to indemnify the indemnitee for its own sole negligence or wilful misconduct. So a clause is not void on its face for being broad. But "sole" does not mean the indemnitee personally and alone: the court rejected the argument that the statute applies only "unless Providence alone is 100% at fault," holding that "this is not strictly correct" because the statute "would invalidate the clause if applied when Providence and its abatement contractors were collectively 100% at fault." An indemnitee whose own subcontractors caused the whole loss is still inside the bar.
7 authorities
- statuteAS 45.45.900enactment date not established
The words that state the rule
A provision, clause, covenant, or agreement contained in, collateral to, or affecting a construction contract that purports to indemnify the promisee against liability for damages for (1) death or bodily injury to persons, (2) injury to property, (3) design defects, or (4) other loss, damage or expense arising under (1), (2), or (3) of this section from the sole negligence or wilful misconduct of the promisee or the promisee's agents, servants, or independent contractors who are directly responsible to the promisee, is against public policy and is void and unenforceable
- statuteAS 45.45.900enactment date not established
The words that state the rule
is against public policy and is void and unenforceable; however, this provision does not affect the validity of an insurance contract, workers' compensation, or agreement issued by an insurer subject to the provisions of AS 21 , or a provision, clause, covenant, or agreement of indemnification respecting the handling, containment, or cleanup of oil or hazardous substances as defined in AS 46 .
- case32 P.3d 346Hoffman Construction Co. of Alaska v. U.S. Fabrication & Erection, Inc.Alaskadecided 2001read it at the source ↗
The words that state the rule
Alaska Statute 45.45.900 limits the enforceability of indemnification clauses: it requires that such clauses not be enforced if they serve to indemnify the indemnitee from its own sole negligence or willful misconduct.
- case32 P.3d 346Hoffman Construction Co. of Alaska v. U.S. Fabrication & Erection, Inc.Alaskadecided 2001read it at the source ↗
The words that state the rule
In Burgess and Duty Free Shoppers, we held that a clause requiring indemnity and defense for claims brought "on account of" or "in connection with" the indemnitor's work is broad enough to include any claims for injuries sustained by the indemnitor's employees while on the job that is the subject of the indemnity clause. 23 We also held that fault *354 was immaterial to this analysis.
- case32 P.3d 346Hoffman Construction Co. of Alaska v. U.S. Fabrication & Erection, Inc.Alaskadecided 2001read it at the source ↗
The words that state the rule
As we held in Burgess v. State and Duty Free Shoppers Group Lid. v. State, if an indemnity clause is broad enough it may indemnify regardless of the parties' liabilities or fault.
- case32 P.3d 346Hoffman Construction Co. of Alaska v. U.S. Fabrication & Erection, Inc.Alaskadecided 2001read it at the source ↗
The words that state the rule
Neither part of the Providence/Hoffman indemnity clause purports to indemnify Hoffman for Providence's sole negligence. Therefore, as a matter of law, AS 45.45.900 does not invalidate the Providence/Hoffman indemnity clause.
- case32 P.3d 346Hoffman Construction Co. of Alaska v. U.S. Fabrication & Erection, Inc.Alaskadecided 2001read it at the source ↗
The words that state the rule
Providence claims that AS 45.45.900 does not apply to invalidate the clause unless Providence alone is 100% at fault. However, this is not strictly correct; AS 45.45.900 would invalidate the clause if applied when Providence and its abatement contractors were collectively 100% at fault.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.