Will this indemnity covering the indemnitee's own negligence hold up in Illinois?
In construction, no: with respect to contracts or agreements, public or private, for the construction, alteration, repair or maintenance of a building, structure, highway bridge, viaduct 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 (740 ILCS 35/1). Outside that Act, an indemnity contract will not be construed as indemnifying one against his own negligence unless such a construction is required by clear and explicit language of the contract 'or such intention is expressed in unequivocal terms' (Westinghouse, where the owner's broad insurance-and-indemnity clause was held not to reach the negligence of the owner's own servants and the judgment against the owner was affirmed). The two fit together the way Long v. Bucyrus-Erie Co. says: "While the rule still applies to indemnity provisions not covered by the Act, there is no longer any reason for the rule where clauses in the construction industry are concerned, and the Westinghouse rule is ineffective as to these provisions."
The trap
No drafting of the indemnity promise saves it in a construction contract: the Act voids the promise to indemnify or hold harmless a person from that person's own negligence, whatever words are used. Long is the worked example of the dodge that fails: the clause there set a standard of care "greater than that required for ordinary negligence", so under the agreement the owner could hold the subcontractor to an extreme degree of care and escape liability for its own negligence, which the court said in terms "it is prohibited from doing under the statute"; the same opinion records that the Westinghouse rule existed before § 1 "to insure that one agreeing to the extraordinary liability of indemnifying another against his own negligence was fully aware of the extent of his liability", which is why the statute displaced it in construction and left it standing elsewhere. The Act's § 3 is the release valve (it 'does not apply to construction bonds or insurance contracts or agreements'), so the Act does not reach risk allocation done through bonds or insurance. Outside construction, Illinois' clear-and-explicit standard is a construction rule, not a magic-words rule: a broad indemnity is read as NOT covering the indemnitee's own negligence unless the language requires that reading or that intention is expressed in unequivocal terms. Westinghouse itself is the worked example of the losing side's argument: the owner argued the contractor's promise to carry insurance 'fully protecting' the owner was broad enough, and the court answered that to adopt that construction 'would impose on the contractor the duty to indemnify against injuries entirely without his control', and read the clause the owner did have against it: the promise to indemnify "was specifically limited to acts or omissions by appellee, its agents, servants or employees", any wider reading "would require the addition of words not used", and "[t]he contract contains no words specifically providing that appellee was to indemnify appellant against the negligence of appellant's employees".
9 authorities
- statute740 ILCS 35/1enactment date not established
The words that state the rule
With respect to contracts or agreements, either public or private, 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.
- case70 N.E.2d 604Westinghouse Electric Elevator Co. v. LaSalle Monroe Building Corp.Ill.decided 1946read it at the source ↗
The words that state the rule
It is quite generally held that an indemnity contract will not be construed as indemnifying one against his own negligence, unless such a construction is required by clear and explicit language of the contract, (Sinclair Oil Co. v. Thornley, 127 Fed. 2d 128; Doughnut Machine Corp. v. Bibbey, 65 Fed. 2d 634,) or such intention is expressed in unequivocal terms.
- case70 N.E.2d 604Westinghouse Electric Elevator Co. v. LaSalle Monroe Building Corp.Ill.decided 1946read it at the source ↗
The words that state the rule
To adopt this construction of the contract would impose on the contractor the duty to indemnify against injuries entirely without his control, and such should not be adopted in the absence of clear language in the contract including injuries arising from the negligence of appellant’s own servants. Our conclusion is that the trial and Appellate courts correctly construed the contract, and, unless there is procedural error, the judgment must be affirmed.
The words that state the rule
While the rule still applies to indemnity provisions not covered by the Act, there is no longer any reason for the rule where clauses in the construction industry are concerned, and the Westinghouse rule is ineffective as to these provisions.
- statute740 ILCS 35/3enactment date not established
The words that state the rule
This Act does not apply to construction bonds or insurance contracts or agreements.
- statute740 ILCS 35/2enactment date not established
The words that state the rule
This Act applies only to contracts or agreements entered into after its effective date.
- case70 N.E.2d 604Westinghouse Electric Elevator Co. v. LaSalle Monroe Building Corp.Ill.decided 1946read it at the source ↗
The words that state the rule
It seems clear that by such language the agreement to indemnify appellant was specifically limited to acts or omissions by appellee, its agents, servants or employees. Any other construction would require the addition of words not used and add thereto conditions and terms about which the contract is silent. The contract contains no words specifically providing that appellee was to indemnify appellant against the negligence of appellant’s employees.
The words that state the rule
This rule was invoked prior to the enactment of section 1 of the Act to limit the enforcement of such contractual provisions so as to insure that one agreeing to the extraordinary liability of indemnifying another against his own negligence was fully aware of the extent of his liability.
The words that state the rule
As noted by the trial court, the standard of care set forth in the clause in question was greater than that required for ordinary negligence. Under the agreement, then, Consol could hold F & E to an extreme degree of care and escape liability for its own negligence. This it is prohibited from doing under the statute.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.