Will a Nebraska court make the other side indemnify us for our own negligence?
In construction, no: the clause is void, not read down. Everywhere else, yes, but only if the contract says so expressly or in clear and unequivocal words; broad boilerplate will not do it. Neb. Rev. Stat. § 25-21,187(1) reaches “a public or private contract or agreement for the construction, alteration, repair, or maintenance of a building, structure, highway bridge, viaduct, water, sewer, or gas distribution system, or other work dealing with construction or for any moving, demolition, or excavation connected with such construction”; if it “contains a covenant, promise, agreement, or combination thereof to indemnify or hold harmless another person from such person's own negligence”, then that covenant “shall be void as against public policy and wholly unenforceable. This subsection shall not apply to construction bonds or insurance contracts or agreements.” Outside that scope the common-law test governs and Dion v. City of Omaha is the current statement: “there is a presumption against any intention to indemnify against an indemnitee's own negligence”; “standing alone, general, broad, and seemingly all-inclusive language is simply not sufficient to impose liability for the negligence of the indemnitee”; and “Clauses indemnifying the indemnitee for the indemnitee's own negligence are strictly construed against the claimant.” Kuhn v. Wells Fargo Bank of Nebraska states the affirmative side: “an indemnitee may be indemnified against his or her own negligence if the contract contains express language to that effect or contains clear and unequivocal language that that is the intention of the parties”, and, just as importantly, it keeps § 25-21,187 inside construction: “Section § 25-21,187(1) is also in derogation of the common law, and as such, should be strictly construed”, and “we hold that "maintenance of a building," within the meaning of § 25-21,187(1), does not encompass the ordinary activities associated with management of commercial property”. When the statute does bite, Nebraska severs rather than voids the whole clause: Hiway 20 Terminal, Inc. v. Tri-County Agri-Supply, Inc. recorded as conceded, that “the final clause in this agreement, stating that the subcontractor must indemnify the general contractor even if the harm is caused by the negligence of the general contractor, is clearly invalid by application of § 25-21,187”, but “[t]he portion regarding Abild's potential liability for the negligence of Tri-County can be stricken from the remainder of the indemnification clause”.
The trap
The insurance exception is the escape every Nebraska construction drafter reaches for, and there are two gates, not one. Anderson v. Nashua Corp. is the worked example: the Court first held § 25-21,187 did not void a tank-restoration agreement “because its exception for insurance agreements is applicable”, since the contractor's obligation was to “provide Nashua with liability insurance” rather than to indemnify, and then struck it anyway, because “[a]n indemnitee may require another to insure losses incurred by reason of his or her own negligence if the contract contains express language to that effect or contains clear and unequivocal language that that is the intention of the parties”, and this one did not. Omaha Public Power District v. Natkin & Co. is the same failure a generation earlier: “Definitely the contract does not contain express language to the effect that Natkin would furnish insurance to cover OPPD's negligence.” So converting your indemnity to an insurance-procurement covenant clears the statute and leaves you exactly where you were on the words. Second trap: the only Nebraska clauses that have actually worked got there by CARVING OUT gross negligence. Kuhn upheld an indemnity because “paragraph 20 *116 places a duty on the Bank to indemnify Lauvetz for any injury other than gross negligence, it clearly still includes negligence that is less than gross”, and Oddo v. Speedway Scaffold Co. enforced a scaffolding lease indemnity on the same logic, with a willful-misconduct carve-out rather than a gross-negligence one. An exception proves the rule in Nebraska drafting. Third trap, and it is the one that bites out-of-state counsel: a Nebraska exculpatory clause and a Nebraska indemnity clause are NOT drafted the same way. Sinu v. Concordia University holds an exculpatory clause need not use the word negligence at all, because relieving a party of its own negligence is the very purpose of the clause; an indemnity clause need not use the word either, but Dion requires express or clear and unequivocal language that the parties intended to cover the indemnitee's own negligence, and Oddo found that intention expressed clearly and unequivocally in a clause that never said it. Copying the release language into the indemnity is how the indemnity fails. Fourth: the statute is unusually blunt. It says “wholly unenforceable”, not “to the extent”, so there is no comparative-fault sliver left over the way there is in most states; what saves the rest of your clause is severance under Hiway 20, not a reading-down of the offending words.
26 authorities
- statuteNeb. Rev. Stat. § 25-21,187enactment date not established
The words that state the rule
In the event that a public or private contract or agreement for the construction, alteration, repair, or maintenance of a building, structure, highway bridge, viaduct, water, sewer, or gas distribution system, or other work dealing with construction or for any moving, demolition, or excavation connected with such construction
- statuteNeb. Rev. Stat. § 25-21,187enactment date not established
The words that state the rule
contains a covenant, promise, agreement, or combination thereof to indemnify or hold harmless another person from such person's own negligence
- statuteNeb. Rev. Stat. § 25-21,187enactment date not established
The words that state the rule
then such covenant, promise, agreement, or combination thereof shall be void as against public policy and wholly unenforceable. This subsection shall not apply to construction bonds or insurance contracts or agreements.
The words that state the rule
there is a presumption against any intention to indemnify against an indemnitee’s own negligence
The words that state the rule
standing alone, general, broad, and seemingly all-inclusive language is simply not sufficient to impose liability for the negligence of the indemnitee
The words that state the rule
Clauses indemnifying the indemnitee for the indemnitee’s own negligence are strictly construed against the claimant.
The words that state the rule
There was not clear and unequivocal language in the Agreement overcoming the presumption that the parties did not intend that the indemnitee would be indemnified for a loss occasioned by the indemnitee’s own negligence.
The words that state the rule
The Bank relies on the proposition that an indemnitee may be indemnified against his or her own negligence if the contract contains express language to that effect or contains clear and unequivocal language that that is the intention of the parties.
The words that state the rule
The parties to the contract are presumed to intend that the indemnitee shall not be indemnified for a loss occasioned by his or her own negligence unless the language of the contract affirmatively expresses an intent to indemnify for such loss.
The words that state the rule
Section § 25-21,187(1) is also in derogation of the common law, and as such, should be strictly construed.
The words that state the rule
we hold that "maintenance of a building," within the meaning of § 25-21,187(1), does not encompass the ordinary activities associated with management of commercial property
The words that state the rule
The statute is simply meant to provide that on construction projects, parties such as contractors and architects remain responsible for their own negligence.
The words that state the rule
Because paragraph 20 *116 places a duty on the Bank to indemnify Lauvetz for any injury other than gross negligence, it clearly still includes negligence that is less than gross
The words that state the rule
we determine that § 25-21,187 does not render the instant agreement invalid because its exception for insurance agreements is applicable
The words that state the rule
the instant agreement did not require Bunch to indemnify Nashua for harm caused by Nashua’s own negligence but, instead, required Bunch to provide Nashua with liability insurance
The words that state the rule
An indemnitee may require another to insure losses incurred by reason of his or her own negligence if the contract contains express language to that effect or contains clear and unequivocal language that that is the intention of the parties.
- case443 N.W.2d 872Hiway 20 Terminal, Inc. v. Tri-County Agri-Supply, Inc.Neb.decided 1989read it at the source ↗
The words that state the rule
As conceded by the appellant Tri-County, the final clause in this agreement, stating that the subcontractor must indemnify the general contractor even if the harm is caused by the negligence of the general contractor, is clearly invalid by application of § 25-21,187
- case443 N.W.2d 872Hiway 20 Terminal, Inc. v. Tri-County Agri-Supply, Inc.Neb.decided 1989read it at the source ↗
The words that state the rule
The portion regarding Abild's potential liability for the negligence of Tri-County can be stricken from the remainder of the indemnification clause, and the language that *876 remains may nonetheless be interpreted to impose liability on Abild.
The words that state the rule
An indemnitee may be indemnified against his own negligence if the contract contains express language to that effect or contains clear and unequivocal language that that is the intention of the parties.
- case227 N.W.2d 864Omaha Public Power District v. Natkin & Co.Neb.decided 1975read it at the source ↗
The words that state the rule
Definitely the contract does not contain express language to the effect that Natkin would furnish insurance to cover OPPD’s negligence.
- case213 N.W.2d 731Peter Kiewit Sons Co. v. O'Keefe Elevator Co., Inc.Neb.decided 1974read it at the source ↗
The words that state the rule
Even if the indemnity provision could be said to be ambiguous, it would necessarily have to be construed against the contractor who wrote it.
The words that state the rule
As is evident from the definition of an exculpatory clause set forth above, reliev- ing a party from its own negligence is the very purpose of an exculpatory clause.
The words that state the rule
While the release’s language may not have explicitly used the word “negligence” or referenced the univer- sity’s conduct, it was not ambiguous.
The words that state the rule
We conclude that a valid agreement to provide insurance was created; however, the contract does not contain express or clear and unequivocal language that the parties intended for Bunch to provide liability insurance to protect Nashua against Nashua’s own negligence.
The words that state the rule
Although the lease’s indemnity clause does not contain the word negligence, the intended consequence of indemnity is expressed clearly and unequivocally — Contractor was obligated to indemnify Speedway concerning claims arising from Speedway’s conduct, including negligence, but excluding claims based on Speedway’s willful misconduct.
- statuteNeb. Rev. Stat. § 70-627.02enactment date not established
The words that state the rule
A public power district or public power and irrigation district may indemnify a public or private entity for such entity's own negligence, notwithstanding section 25-21,187 , if the district enters into a contract with the public or private entity for the management or operation of a nuclear power plant that provides for compensation on an at-cost basis.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.