Will a Rhode Island court make our counterparty indemnify us for our own negligence?
In construction, no. Everywhere else, yes if the contract says so clearly and unequivocally. R.I. Gen. Laws § 6-34-1(a) makes a covenant in or collateral to a contract relative to “the design, planning, construction, alteration, repair, or maintenance of a building, structure, highway, road, appurtenance, and appliance”, where “the promisee … has hired the promisor to perform work”, “purporting to indemnify the promisee … against liability for damages arising out of bodily injury to persons or damage to property proximately caused by or resulting from the negligence of the promisee … against public policy and … void”. The Supreme Court reads it narrowly on both sides: “This Court has interpreted the provisions of § 6-34-1 to invalidate agreements between contractors in which a subcontractor has agreed to indemnify a general contractor for the latter’s own negligence”, but “[t]his same statute, however, permits agreements in which the subcontractor indemnifies the general contractor for claims arising from the subcontractor’s own negligence” (A.F. Lusi Construction, Inc. v. Peerless Insurance Co.), and “[t]he plain language of § 6-34-1 invalidates the problematic promise itself, not the agreement in its entirety” (Rodrigues v. DePasquale Building & Realty Co.). Outside that subject matter the common law governs and it is permissive: “We have previously upheld exculpatory-indemnification clauses that negate liability for an individual’s own negligence if the clause is sufficiently specific” and “it is not violative of public policy for individuals to limit liability for their own negligence through an exculpatory-indemnification clause”, provided “the parties’ intention to hold harmless is clearly and unequivocally expressed in the contract” (Rhode Island Hospital Trust National Bank v. Dudley Service Corp.). A lease that nowhere “specifically covenant[s] to indemnify and to hold plaintiff harmless from the consequences of his own negligence” fails (Dower v. Dower’s Inc.).
The trap
Striking the offending words does not release the indemnitor: it converts the clause. Rodrigues voids only the promise, and Beacon Mutual describes the consequence: the partial voiding “did not render the entire contract void, thus making Spino Bros. contractually liable to DePasquale, unless DePasquale’s negligence was the proximate cause of the death.” A Rhode Island subcontractor that signs a broad AIA-style indemnity and then wins on § 6-34-1 is still on the hook for everything the general contractor did not proximately cause. Second, check § 6-34-1’s subject matter before invoking it: it applies to work on a “building, structure, highway, road, appurtenance, and appliance” where the promisee hired the promisor to perform work, so a supply agreement, a software or services contract, a lease or an alarm-monitoring contract is governed by Dudley, not by the statute, and chapter 6-34 contains exactly one section, so there is no separate definitions or exemption section to read it down. Third, the insurance route is NOT settled. Section 6-34-1(a) provides that “this section shall not affect the validity of any insurance contract, worker’s compensation agreement, or an agreement issued by an insurer” and (b) preserves purchasing insurance or a construction bond, but whether an agreement to PROCURE insurance covering the other party’s own negligence escapes the statute is expressly open: the Supreme Court headed that part of A.F. Lusi “We Need Not Decide Whether an Agreement by One Party to a Construction Contract to Procure Insurance for Another Party’s Alleged Negligence Violates § 6-34-1”. Drafting the indemnity as an insurance-procurement covenant is an argument in Rhode Island, not an answer.
22 authorities
- statuteR.I. Gen. Laws § 6-34-1enactment date not established
The words that state the rule
purporting to indemnify the promisee, the promisee’s independent contractors, agents, employees, or indemnitees against liability for damages arising out of bodily injury to persons or damage to property proximately caused by or resulting from the negligence of the promisee, the promisee’s independent contractors, agents, employees, or indemnitees, is against public policy and is void
- statuteR.I. Gen. Laws § 6-34-1enactment date not established
The words that state the rule
a contract or agreement relative to the design, planning, construction, alteration, repair, or maintenance of a building, structure, highway, road, appurtenance, and appliance, including moving, demolition, and excavating connected with a building, structure, highway, road, appurtenance, or appliance, pursuant to which contract or agreement the promisee or the promisee’s independent contractors, agents, or employees has hired the promisor to perform work
- statuteR.I. Gen. Laws § 6-34-1enactment date not established
The words that state the rule
provided that this section shall not affect the validity of any insurance contract, worker’s compensation agreement, or an agreement issued by an insurer.
- statuteR.I. Gen. Laws § 6-34-1enactment date not established
The words that state the rule
Nothing in this section shall prohibit any person from purchasing insurance for his or her own protection or from purchasing a construction bond.
- case847 A.2d 254A.F. Lusi Construction, Inc. v. Peerless Insurance Co.R.I.decided 2004read it at the source ↗
The words that state the rule
This Court has interpreted the provisions of § 6-34-1 to invalidate agreements between contractors in which a subcontractor has agreed to indemnify a general contractor for the latter’s own negligence.
- case847 A.2d 254A.F. Lusi Construction, Inc. v. Peerless Insurance Co.R.I.decided 2004read it at the source ↗
The words that state the rule
This same statute, however, permits agreements in which the subcontractor indemnifies the general contractor for claims arising from the subcontractor’s own negligence.
- case847 A.2d 254A.F. Lusi Construction, Inc. v. Peerless Insurance Co.R.I.decided 2004read it at the source ↗
The words that state the rule
We Need Not Decide Whether an Agreement by One Party to a Construction Contract to Procure Insurance for Another Party’s Alleged Negligence Violates § 6-34-1
- case926 A.2d 616Rodrigues v. DePasquale Building & Realty Co.R.I.decided 2007read it at the source ↗
The words that state the rule
The plain language of § 6-34-1 invalidates the problematic promise itself, not the agreement in its entirety.
- case926 A.2d 616Rodrigues v. DePasquale Building & Realty Co.R.I.decided 2007read it at the source ↗
The words that state the rule
However, there is nothing in § 6-34-1 that bars [the contractor] from attempting to secure indemnification from [the subcontractor] for claims resulting from negligence on the part of [the subcontractor].
- case11 A.3d 645Beacon Mutual Insurance Co. v. Spino Bros., Inc.R.I.decided 2011read it at the source ↗
The words that state the rule
we declared that the portion of the contract that would require Spino Bros, to indemnify DePasq-uale for DePasquale’s own negligence was contrary to public policy and therefore was void.
- case11 A.3d 645Beacon Mutual Insurance Co. v. Spino Bros., Inc.R.I.decided 2011read it at the source ↗
The words that state the rule
We further held, however, that this did not render the entire contract void, thus making Spino Bros, contractually liable to DePasquale, unless DePasquale’s negligence was the proximate cause of the death.
The words that state the rule
However, the Legislature has not prohibited the use of all indemnification contracts in the construction industry.
The words that state the rule
Earlier, in Di Lonardo v. Gilbane Building Co., 114 R.I. 469 , 334 A.2d 422 (1975), the court ruled that a building contract in which a subcontractor specifically agrees to indemnify and hold harmless a general contractor, regardless of the general contractor’s negligence, was valid and did not violate public policy.
- case605 A.2d 1325Rhode Island Hospital Trust National Bank v. Dudley Service Corp.R.I.decided 1992read it at the source ↗
The words that state the rule
We have previously upheld exculpatory-indemnification clauses that negate liability for an individual’s own negligence if the clause is sufficiently specific.
- case605 A.2d 1325Rhode Island Hospital Trust National Bank v. Dudley Service Corp.R.I.decided 1992read it at the source ↗
The words that state the rule
A contract will not be construed to indemnify the indemnitee against losses resulting from his or her own negligent acts unless the parties’ intention to hold harmless is clearly and unequivocally expressed in the contract.
- case605 A.2d 1325Rhode Island Hospital Trust National Bank v. Dudley Service Corp.R.I.decided 1992read it at the source ↗
The words that state the rule
We conclude that it is not violative of public policy for individuals to limit liability for their own negligence through an exculpatory-indemnification clause.
The words that state the rule
In our judgment, the declaration is defective for the reason that nowhere in the lease does defendant specifically covenant to indemnify and to hold plaintiff harmless from the consequences of his own negligence.
The words that state the rule
The trial justice refused on policy grounds to enforce these indemnity provisions because in his judgment they purported to immunize plaintiff as a landlord from losses occasioned by reason of his own negligence and he sustained the demurrer to the declaration. We agree with the result but not with the reason.
- case605 A.2d 1325Rhode Island Hospital Trust National Bank v. Dudley Service Corp.R.I.decided 1992read it at the source ↗
The words that state the rule
In the circumstances of this case we conclude that the limitation-of-liability provisions contained in the lease agreement are not violative of public policy and are enforceable as written.
The words that state the rule
A remand is necessary for a determination concerning the negligence of Otis and its responsibility under the indemnification clause. Lusi’s appeal is sustained, the judgment appealed from is affirmed in part and reversed in part, and the case is remanded to the Superior Court.
- case847 A.2d 254A.F. Lusi Construction, Inc. v. Peerless Insurance Co.R.I.decided 2004read it at the source ↗
The words that state the rule
Conclusion Thus, we affirm the motion justice’s entry of final judgment in favor of Peerless.
- case926 A.2d 616Rodrigues v. DePasquale Building & Realty Co.R.I.decided 2007read it at the source ↗
The words that state the rule
Conclusion For the reasons stated herein, we reverse in part and affirm in part the judgment of the Superior Court. The record shall be remanded to the Superior Court to enter judgment, pursuant to the indemnity agreement, in favor of DePasquale Bldg.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.