Will our indemnity clause cover the indemnitee's own negligence in Kansas?
In four kinds of contract, no. An indemnification provision in a contract which requires the promisor to indemnify the promisee for the promisee's negligence or intentional acts or omissions is against public policy and is void and unenforceable, and a provision requiring a party to provide liability coverage to another party as an additional insured for that other party's own negligence or intentional acts or omissions is equally void (K.S.A. 16-121(b)-(c)). "Contract" for that purpose means any construction contract, motor carrier transportation contract, dealer agreement or franchise agreement, each defined at length in K.S.A. 16-121(a). Outside those contracts the rule is one of construction rather than invalidity: in Johnson v. Board of County Commissioners the Supreme Court reversed a ruling that a general hold-harmless clause barred a county's indemnity claim against the State, stating that "an agreement seeking to protect a party from liability for its own negligence is subject to strict construction", and set out the rule from Butters that a contract of indemnity will not be construed to indemnify the indemnitee against losses resulting from his own negligent acts unless such intention is expressed in clear and unequivocal terms, or unless no other meaning can be ascribed to it, and that mere general, broad and seemingly all-inclusive language is not sufficient.
The trap
Read K.S.A. 16-121(d) before concluding a clause is dead. The section does not affect or impair a contractual obligation to provide railroad protective or general liability insurance; certain environmental strict-liability indemnities; an indemnification that is an integral part of a settlement of a disputed claim on consideration, where the dispute relates to an event related to a construction contract that occurred before the settlement and the indemnity relates only to claims arising from that past event; the validity of an insurance contract, construction bond or other agreement lawfully issued by an insurer or bonding company; a separately negotiated provision by which the parties mutually agree to a reasonable allocation of risk that is based on generally accepted industry loss experience and supported by adequate consideration; or an agreement for indemnity the parties agree in writing will be supported by liability insurance furnished by the promisor, limited to the coverage and dollar limits of that insurance. "Indemnification provision" is itself a defined term, and the definition reaches more than an indemnity: a covenant, promise, agreement, clause or understanding in connection with, contained in, or collateral to a contract "that requires the promisor to hold harmless, indemnify or defend the promisee or others against liability for loss or damages" (K.S.A. 16-121(a)(6)). "Mutual indemnity obligation" and "unilateral indemnity obligation" are defined terms too, and which one a clause creates decides how the insurance-backed saver caps it: a mutual obligation is limited to the coverage and dollar limits of insurance or qualified self-insurance each party agreed to obtain for the other, a unilateral one to the limits the promisor agreed to obtain, at the promisee's expense and under a separate policy. The section also carries its own date: "This section applies only to indemnification provisions and additional insured provisions entered into after January 1, 2009."
19 authorities
- statuteK.S.A. 16-121enactment date not established
The words that state the rule
An indemnification provision in a contract which requires the promisor to indemnify the promisee for the promisee's negligence or intentional acts or omissions is against public policy and is void and unenforceable.
- statuteK.S.A. 16-121enactment date not established
The words that state the rule
A provision in a contract which requires a party to provide liability coverage to another party, as an additional insured, for such other party's own negligence or intentional acts or omissions is against public policy and is void and unenforceable.
- statuteK.S.A. 16-121enactment date not established
The words that state the rule
a separately negotiated provision or provisions whereby the parties mutually agree to a reasonable allocation of risk, if each such provision is: (A) Based on generally accepted industry loss experience; and (B) supported by adequate consideration; and
- statuteK.S.A. 16-121enactment date not established
The words that state the rule
This section applies only to indemnification provisions and additional insured provisions entered into after January 1, 2009.
The words that state the rule
The Court of Appeals, without discussion of indemnification for one’s own negligence, affirmed the district court’s ruling, but for a different reason. 21 Kan. App. 2d at 92 . We reverse. We acknowledge that a party may contract away responsibility for its own negligence. See Corral v. Rollins Protective Services *329 Co., 240 Kan. 678, 680-81 , 732 P.2d 1260 (1987). However, an agreement seeking to protect a party from liability for its own negligence is subject to strict construction ánd will not be enforced unless the protection from liability is expressed in clear and unequivocal terms.
The words that state the rule
It is a general rule that a contract of indemnity will not be construed to indemnify the indemnitee against losses resulting from his own negligent acts unless such intention is expressed in clear and unequivocal terms, or unless no other meaning can be ascribed thereto, and mere general broad and seemingly all-inclusive language in the indemnifying agreement is not sufficient to impose liability for the indemnitee’s own negligence.
The words that state the rule
The language of the 1975 agreement does not qualify under Zenda, Butters , and Corral as an enforceable hold harmless agreement. The language is not expressed in terms clear and unequivocal enough to contract away KDOT’s own negligence.
- statuteK.S.A. 16-121enactment date not established
The words that state the rule
"Contract" means any construction contract, motor carrier transportation contract, dealer agreement or franchise agreement.
- statuteK.S.A. 16-121enactment date not established
The words that state the rule
(1) "Construction contract" means an agreement for the design, construction, alteration, renovation, repair or maintenance of a building, structure, highway, road, bridge, water line, sewer line, oil line, gas line, appurtenance or other improvement to real property, including any moving, demolition or excavation, except that no deed, lease, easement, license or other instrument granting an interest in or the right to possess property shall be deemed to be a construction contract even if the instrument includes the right to design, construct, alter, renovate, repair or maintain improvements on such real property. "Construction contract" shall not include any design, construction, alteration, renovation, repair or maintenance of: (A) Dirt or gravel roads used to access oil and gas wells and associated facilities; or (B) oil flow lines or gas gathering lines used in association with the transportation of production from oil and gas wells from the wellhead to oil storage facilities or gas transmission lines.
- statuteK.S.A. 16-121enactment date not established
The words that state the rule
This act shall not be construed to affect or impair: (1) The contractual obligation of a contractor or owner to provide railroad protective insurance or general liability insurance; (2) an agreement under which an owner, a responsible party or a governmental entity agrees to indemnify a contractor directly or through another contractor with respect to strict liability under environmental laws;
- statuteK.S.A. 16-121enactment date not established
The words that state the rule
an indemnification agreement that is an integral part of an offer to compromise or a settlement of a disputed claim, if: (A) The settlement is based on consideration; (B) the dispute relates to an alleged event that is related to a construction contract and that occurred before the settlement is made; and (C) the indemnification relates only to claims that have arisen or may arise from the past event;
- statuteK.S.A. 16-121enactment date not established
The words that state the rule
the validity of any insurance contract, construction bond or other agreement lawfully issued by an insurer or bonding company;
- statuteK.S.A. 16-121enactment date not established
The words that state the rule
(6) an agreement that provides for indemnity if the parties agree in writing that the indemnity obligation will be supported by liability insurance coverage to be furnished by the promisor subject to the following limitations: (A) With respect to a mutual indemnity obligation, the indemnity obligation is limited to the extent of the coverage and dollar limits of insurance or qualified self-insurance each party as promisor has agreed to obtain for the benefit of the other party as promisee. (B) With respect to a unilateral indemnity obligation, the indemnity obligation is limited to the extent of the coverage and dollar limits of insurance the promisor has agreed to obtain for the benefit of the other party as promisee. Such indemnity obligation shall be at the promisee's expense and shall be a separate liability insurance policy.
- statuteK.S.A. 16-121enactment date not established
The words that state the rule
(4) "Dealership agreement" means an oral or written agreement of definite or indefinite duration between an equipment manufacturer or service provider and an equipment or service dealer which provides for the rights and obligations of the parties with respect to the purchase or sale of such equipment or services.
- statuteK.S.A. 16-121enactment date not established
The words that state the rule
(5) "Franchise agreement" means any contract or franchise or any other terminology used to describe the contractual relationship between manufacturers, distributors and dealers, by which: (A) A right is granted one party to engage in the business of offering, selling or otherwise distributing goods or services under a marketing plan or system prescribed in substantial part by the other party, and in which there is a community of interest in the marketing of goods or services at wholesale or retail, by lease, agreement or otherwise; and (B) the operation of the grantee's business pursuant to such agreement is substantially associated with the grantor's trademark, service mark, trade name, logotype, advertising or other commercial symbol designating the grantor or an affiliate of the grantor.
- statuteK.S.A. 16-121enactment date not established
The words that state the rule
(6) "Indemnification provision" means a covenant, promise, agreement, clause or understanding in connection with, contained in, or collateral to a contract that requires the promisor to hold harmless, indemnify or defend the promisee or others against liability for loss or damages.
- statuteK.S.A. 16-121enactment date not established
The words that state the rule
(7) "Motor carrier transportation contract" means, with respect to a motor carrier as defined in 49 C.F.R. § 390.5, as in effect on July 1, 2017, or any later version as established in rules and regulations adopted by the state corporation commission, a contract, agreement or understanding covering: (A) The transportation of property by a motor carrier; (B) the entrance on property by the motor carrier for the purpose of loading, unloading or transporting property; or (C) a service incidental to activity described in subparagraph (A) or (B) including, but not limited to, storage of property. "Motor carrier transportation contract" shall not include the uniform intermodal interchange and facilities access agreement administered by the intermodal association of North America or other agreements providing for the interchange, use or possession of intermodal chassis, containers or other intermodal equipment.
- statuteK.S.A. 16-121enactment date not established
The words that state the rule
(8) "Mutual indemnity obligation" means an indemnity obligation in a contract in which the parties agree to indemnify each other and each other's contractors and their employees against loss, liability or damages arising in connection with bodily injury, death and damage to property of the respective employees, contractors or their employees, and invitees of each party arising out of or resulting from the performance of the agreement.
- statuteK.S.A. 16-121enactment date not established
The words that state the rule
(10) "Unilateral indemnity obligation" means an indemnity obligation in a contract in which one of the parties as promisor agrees to indemnify the other party as promisee with respect to claims for personal injury or death to the promisor's employees or agents or to the employees or agents of the promisor's contractors but in which the promisee does not make a reciprocal indemnity to the promisor.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.