Can a Delaware construction contract shift the promisee's own negligence onto the other side?
No. A covenant, promise, agreement or understanding in, in connection with, or collateral to a contract relative to the construction, alteration, repair or maintenance in Delaware of a road, highway, driveway, street, bridge, or an entrance or walkway constructed thereon, or of any building, structure, appurtenance or appliance in the State (including the moving, demolition and excavating connected with it) is against public policy and void and unenforceable where it purports to indemnify or hold harmless the promisee or indemnitee, or others, or their agents, servants and employees, for damages arising from liability for bodily injury or death to persons or damage to property caused partially or solely by, or resulting partially or solely from, or arising partially or solely out of, the negligence of that promisee or indemnitee, or of anyone other than the promisor or indemnitor, its subcontractors, agents, servants or employees. Clear drafting is no answer: the section voids the covenant even where it is crystal clear and unambiguous, it applies to all phases of preconstruction, construction, repair and maintenance, and it is expressly not limited to preconstruction professionals such as designers, planners and architects. Three things sit outside it. An obligation owed to the Department of Transportation under a contract awarded under Title 17 or Chapter 69 of Title 29 is excepted by the section's own proviso. Policies of insurance issued by duly authorised insurance companies are untouched. And subsection (c) makes subsection (a) inapplicable to a partnership agreement, a limited liability company agreement, a trust agreement or a trust's governing instrument, a certificate of incorporation and a bylaw.
The trap
'Partially or solely' is the operative phrase, and it is what catches a drafter used to sole-negligence carve-outs: carving out only the indemnitee's SOLE negligence does not rescue the clause, because shared fault is expressly inside the prohibition. Note the statute reaches public and private contracts alike (it names the State, counties, municipalities and their agencies explicitly, alongside private parties) with one government exception written into the section itself: an obligation owed to the Department of Transportation under a contract awarded under Title 17 or Chapter 69 of Title 29. The other way out is structural rather than verbal. Subsection (c) lifts subsection (a) off entity agreements altogether, so the same indemnity that is void in a construction contract is untouched in a partnership agreement, an LLC agreement, a trust instrument, a certificate of incorporation or a bylaw.
4 authorities
The words that state the rule
(a) A covenant, promise, agreement or understanding in, or in connection with or collateral to, a contract or agreement (including but not limited to a contract or agreement with the State, any county, municipality or political subdivision of the State, or with any agency, commission, department, body or board of any of them, as well as any contract or agreement with a private party or entity) relative to the construction, alteration, repair or maintenance in the State of a road, highway, driveway, street, bridge or entrance or walkway of any type constructed thereon in the State, and building, structure, appurtenance or appliance in the State, including without limiting the generality of the foregoing, the moving, demolition and excavating connected therewith, purporting to indemnify or hold harmless the promisee or indemnitee or others, or their agents, servants and employees, for damages arising from liability for bodily injury or death to persons or damage to property caused partially or solely by, or resulting partially or solely from, or arising partially or solely out of the negligence of such promisee or indemnitee or others than the promisor or indemnitor, or its subcontractors, agents, servants or employees, is against public policy and is void and unenforceable, even where such covenant, promise, agreement or understanding is crystal clear and unambiguous in obligating the promisor or indemnitor to indemnify or hold harmless the promisee or indemnitee from liability resulting from such promisee’s or indemnitee’s own negligence.
- statute6 Del. C. § 2704enactment date not established
The words that state the rule
This section shall apply to all phases of the preconstruction, construction, repairs and maintenance described in this subsection, and nothing in this section shall be construed to limit its application to preconstruction professionals such as designers, planners and architects; provided, however, that this section shall not apply to any obligation owed to the Department of Transportation pursuant to a contract awarded under Title 17 or Chapter 69 of Title 29.
- statute6 Del. C. § 2704enactment date not established
The words that state the rule
(b) Nothing in subsection (a) of this section shall be construed to void or render unenforceable policies of insurance issued by duly authorized insurance companies and insuring against losses or damages from any causes whatsoever.
- statute6 Del. C. § 2704enactment date not established
The words that state the rule
(c) Subsection (a) of this section does not apply to any covenant, promise, agreement, understanding, or other provision in a partnership agreement of a partnership (whether general or limited), limited liability company agreement, trust agreement, governing instrument of a trust, certificate of incorporation or bylaw.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.