Will Idaho enforce this indemnity clause in our construction contract if the indemnitee was also at fault?
It depends on whether the indemnitee's negligence was SOLE or shared. Idaho Code § 29-114 voids an indemnity clause only for the indemnitee's OWN sole negligence: "A covenant, promise, agreement or understanding in, or in connection with or collateral to, a contract or agreement relative to the construction, alteration, repair or maintenance of a building, structure, highway, appurtenance and appliance... purporting to indemnify the promisee against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the SOLE negligence of the promisee, his agents or employees, or indemnitees, is against public policy and is void and unenforceable." Beitzel v. City of Coeur d'Alene confirms the statute's edge is exactly that word "sole": "The indemnification clause does not require Orton to indemnify GTNW, if Beitzel's injuries had been caused solely by GTNW's negligence. To this extent, the clause does not violate I.C. § 29-114." Where the indemnitee's negligence was combined with another party's fault, not sole, the clause survives § 29-114's bar.
The trap
"Sole negligence" is a narrow trigger, and a drafter should not assume § 29-114 voids every construction indemnity that happens to touch the indemnitee's own fault: Beitzel held the opposite: because the injury resulted from COMBINED negligence of multiple parties rather than the indemnitee's negligence alone, the clause did not violate the statute and was enforced. Conversely, do not assume a clause survives merely because other parties were also at fault in some general sense: the statute's text requires identifying whose negligence the DAMAGES actually "result[ed] from," which Beitzel treated as a fact question requiring the court to trace whether the specific injury was caused solely by the indemnitee or by a combination including the indemnitor. Steiner Corp. v. American District Telegraph (1984) is a further limit: in a footnote answering an argument "not argued below," the Supreme Court said the section "was intended to apply only to agreements by third parties, strangers to the negligent occurrence, to indemnify the tortfeasor for liability for the occurrence," so it did not reach a two-party limitation-of-liability clause "where no third party is involved, and no indemnification situation is presented": a gloss on the statute's reach, stated in a footnote, that a party defending its own exculpatory clause can invoke. Read the whole footnote before leaning on it. The Court gave a second and independent reason: "even if the statute did apply to this action, the statute specifically excludes from its effect contracts entered into before its effective date (1971), and the contract in question was entered into prior to that date." That exclusion is § 29-114's own second paragraph, which says the act "will not be construed to affect or impair the obligations of contracts or agreements, which are in existence at the time the act becomes effective", so the gloss rests on an alternative ground that could only decide a pre-1971 contract.
5 authorities
- statuteIdaho Code § 29-114enactment date not established
The words that state the rule
A covenant, promise, agreement or understanding in, or in connection with or collateral to, a contract or agreement relative to the construction, alteration, repair or maintenance of a building, structure, highway, appurtenance and appliance, including moving, demolition and excavating connected therewith, purporting to indemnify the promisee against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee, his agents or employees, or indemnitees, is against public policy and is void and unenforceable. This act will not be construed to affect or impair the obligations of contracts or agreements, which are in existence at the time the act becomes effective.
The words that state the rule
The indemnification clause does not require Orton to indemnify GTNW, if Beitzel’s injuries had been caused solely by GTNW’s negligence. To this extent, the clause does not violate I.C. § 29-114. The questions we must resolve, however, are (1) whether the clause requires Orton to indemnify GTNW, where Beitzel’s injuries were caused solely through the combined negligence of the city, GTNW, Orton, and CDAA, (2) whether Orton and CDAA were agents or employees of GTNW, and (3) whether the city is an indemnitee of GTNW.
The words that state the rule
Therefore, we conclude that the clause requires Orton to indemnify GTNW for any liability caused solely through the combined negligence of GTNW, Orton, CDAA, and the city.
The words that state the rule
Therefore, the city was not entitled to indemnification by GTNW and was not an indemnitee of GTNW, as referred to in I.C. § 29-114. For this reason, the indemnification clause of the agreement between GTNW and Or-ton did not violate I.C. § 29-114. VIII. CONCLUSION. We affirm the judgment in favor of Beitzel against the city, GTNW, Orton, and CDAA. We reverse the trial court’s order setting aside the judgment granting the city and GTNW indemnification from Orton and CDAA. We remand the case to the trial court for reinstatement of the judgment for indemnification.
- case683 P.2d 435Steiner Corp. v. American District TelegraphIdahodecided 1984read it at the source ↗
The words that state the rule
1 . Steiner argued at oral argument on appeal (although it was not argued below) that I.C. § 29-114 should apply to invalidate the Clause D part of this contract. That code section was intended to apply only to agreements by third parties, strangers to the negligent occurrence, to indemnify the tortfeasor for liability for the occurrence. As such, it is not applicable in this case, where no third party is involved, and no indemnification situation is presented. Also, even if the statute did apply to this action, the statute specifically excludes from its effect contracts entered into before its effective date (1971), and the contract in question was entered into prior to that date.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.