Will our indemnity clause be enforced in Virginia if it reaches our own negligence?
Outside construction, yes; inside it, no, and the statute is read far more broadly than its words first suggest. Va. Code § 11-4.1 declares against public policy and "void and unenforceable" any provision in a contract relating to the construction, alteration, repair or maintenance of a building or structure (or to the construction of non-building projects) by which the contractor performing the work purports to indemnify or hold harmless another party against liability for bodily injury or property damage "caused by or resulting solely from the negligence of such other party or his agents or employees". In Uniwest the Supreme Court of Virginia held: "Because the phrases 'caused by' and 'resulting solely from' are disjunctive in the statute, it voids any indemnification provision that reaches damage caused by the negligence of the indemnitee, even if the damage does not result solely from the negligence of the indemnitee. Thus, the issue is not whether an indemnification provision is written so broadly that it encompasses the negligence of parties in addition to the indemnitee. Rather, the issue is whether the provision is so broad that it indemnifies the indemnitee from its own negligence." Two neighbouring statutes go further in their own fields. Section 11-4.4 does three things for a contract for the PLANNING OR DESIGN of a building or of a construction project: it voids the architect's or engineer's indemnity of another party for damage "caused by or resulting solely from the negligence of such other party" on the same disjunctive words as § 11-4.1; where the other party is a PUBLIC BODY it voids every provision by which the design professional "purports to indemnify or hold harmless the public body against liability" at all, saving only indemnity for the design professional's own "negligent acts, errors or omissions, recklessness or intentionally wrongful conduct"; and it makes "any provision ... by which any party purports to impose a duty to defend on any other party to the contract" void; and in a motor carrier transportation contract a provision indemnifying either party against liability "resulting from the negligence or intentional acts or omissions of other party" is void (§ 11-4.5(B)). At common law Virginia is permissive, in a construction case where § 11-4.1 was never raised: "Estes, therefore, establishes that a contractual provision whereby a party indemnifies itself against losses incurred as the result of personal injury caused by its own future negligence is enforceable and does not violate the public policy of the Commonwealth" (W.R. Hall).
The trap
Uniwest is the trap, and it reverses the instinct every drafter has. Because the statutory phrases are disjunctive, writing the clause broadly ("whether or not such claim(s) are based upon the negligence of" the indemnitee) does not save it by diluting the indemnitee's share; breadth is what kills it. Uniwest also tells you where to look: "the unambiguous language of Code § 11-4.1 requires us to look to the contract containing the provision, not the circumstances from which the claim for indemnification arose", so the clause can be void on its face before anyone reaches the facts, and in Uniwest the void clause was fatal only to Paragraph 10: the Court affirmed that Paragraph 10 was void under § 11-4.1 but reversed the rulings that there was therefore no duty to defend and no insurance cover, holding instead that another paragraph of the prime contract "imposed a duty on Amtech to defend and indemnify Uniwest" and that "Uniwest was insured under Subdivision E-4 and Subdivision E-7 of the AIU Policy". Section 11-4.1 also has scope limits worth reading as written: it applies to contracts between contractors and any public body as defined in § 2.2-4301, it does not affect the validity of any insurance contract, workers' compensation, or any agreement issued by an admitted insurer, and it does not apply to any contract entered into before July 1, 1973.
14 authorities
- statuteVa. Code § 11-4.1enactment date not established
The words that state the rule
Any provision contained in any contract relating to the construction, alteration, repair or maintenance of a building, structure or appurtenance thereto, including moving, demolition and excavation connected therewith, or any provision contained in any contract relating to the construction of projects other than buildings by which the contractor performing such work purports to indemnify or hold harmless another party to the contract against liability for damage arising out of bodily injury to persons or damage to property suffered in the course of performance of the contract, caused by or resulting solely from the negligence of such other party or his agents or employees, is against public policy and is void and unenforceable.
- statuteVa. Code § 11-4.1enactment date not established
The words that state the rule
This section applies to such contracts between contractors and any public body, as defined in § 2.2-4301 . This section shall not affect the validity of any insurance contract, workers' compensation, or any agreement issued by an admitted insurer. The provisions of this section shall not apply to any provision of any contract entered into prior to July 1, 1973.
- statuteVa. Code § 11-4.4enactment date not established
The words that state the rule
Any provision contained in any contract relating to the planning or design of a building, structure, or appurtenance thereto, including moving, demolition, or excavation connected therewith, or any provision contained in any contract relating to the planning or design of construction projects by which any party purports to impose a duty to defend on any other party to the contract, is against public policy and is void and unenforceable. This section shall not affect the validity of any insurance contract, workers' compensation, or any agreement issued by an admitted insurer.
- statuteVa. Code § 11-4.5enactment date not established
The words that state the rule
A provision, clause, covenant, or agreement contained in, collateral to, or affecting a motor carrier transportation contract that purports to indemnify, or hold harmless, or has the effect of indemnifying, or holding harmless, either party from or against any liability for loss or damage resulting from the negligence or intentional acts or omissions of other party, or any agents, employees, servants, or independent contractors who are directly responsible to the other party, is against the public policy and is void and unenforceable.
- case699 S.E.2d 223Uniwest Construction, Inc. v. Amtech Elevator Services, Inc.Va.decided 2010read it at the source ↗
The words that state the rule
Because the phrases “caused by” and “resulting solely from” are disjunctive in the statute, it voids any indemnification provision that reaches damage caused by the negligence of the indemnitee, even if the damage does not result solely from the negligence of the indemnitee.
- case699 S.E.2d 223Uniwest Construction, Inc. v. Amtech Elevator Services, Inc.Va.decided 2010read it at the source ↗
The words that state the rule
Thus, the issue is not whether an indemnification provision is written so broadly that it encompasses the negligence of parties in addition to the indemnitee. Rather, the issue is whether the provision is so broad that it indemnifies the indemnitee from its own negligence. Paragraph 10 clearly reaches beyond the negligence of other parties and indemnifies Uniwest. Therefore it violates Code § 11-4.1 and is void.
- case273 Va. 350W.R. Hall, Inc. v. Hampton Roads Sanitation DistrictVa.decided 2007read it at the source ↗
The words that state the rule
Estes, therefore, establishes that a contractual provision whereby a party indemnifies itself against losses incurred as the result of personal injury caused by its own future negligence is enforceable and does not violate the public policy of the Commonwealth.
- statuteVa. Code § 11-4.4enactment date not established
The words that state the rule
Every provision contained in a contract between an architect or professional engineer and a public body relating to the planning or design of a building, structure or appurtenance thereto, including moving, demolition or excavation connected therewith, or relating to the planning or design of construction projects other than buildings by which the architect or professional engineer performing such work purports to indemnify or hold harmless the public body against liability is against public policy and is void and unenforceable. This section shall not be construed to alter or affect any provision in such a contract that purports to indemnify or hold harmless the public body against liability for damage arising out of the negligent acts, errors or omissions, recklessness or intentionally wrongful conduct of the architect or professional engineer in performance of the contract.
- case699 S.E.2d 223Uniwest Construction, Inc. v. Amtech Elevator Services, Inc.decided 2010read it at the source ↗
The words that state the rule
However, the unambiguous language of Code § 11-4.1 requires us to look to the contract containing the provision, not the circumstances from which the claim for indemnification arose, to determine whether an indemnification provision violates Code § 11-4.1.
- case699 S.E.2d 223Uniwest Construction, Inc. v. Amtech Elevator Services, Inc.Va.decided 2010read it at the source ↗
The words that state the rule
The operative language of Paragraph 10 states “If any claims . . . be made or asserted, whether or not such claim(s) are based upon the negligence of Uniwest or [Fountains], [Amtech] agrees to indemnify and save harmless Uniwest from any and all such claims . . . .” (Emphasis added.) The plain meaning of this language clearly obligates Amtech to indemnify Uniwest whether or not the claim is based upon the negligence of Uniwest.
- statuteVa. Code § 11-4.5enactment date not established
The words that state the rule
For the purposes of this section, the term "motor carrier transportation contract" shall not include the Uniform Intermodal Interchange and Facilities Access Agreement administered by the Intermodal Association of North America, as that agreement may be amended by the Intermodal Interchange Executive Committee, or other agreements providing for the interchange, use, or possession of intermodal chassis, containers, or other intermodal equipment.
- case273 Va. 350W.R. Hall, Inc. v. Hampton Roads Sanitation DistrictVa.decided 2007read it at the source ↗
The words that state the rule
Accordingly, the trial court correctly ruled that the indemnity provisions in Article 6.16 and Article 6.31 are not void as against public policy and are enforceable. The judgment of the trial court will therefore be affirmed.
- case699 S.E.2d 223Uniwest Construction, Inc. v. Amtech Elevator Services, Inc.Va.decided 2010read it at the source ↗
The words that state the rule
We affirm the circuit court’s holding that Paragraph 10 of the Subcontract is void against the public policy expressed in Code § 11-4.1. However, because we hold that Paragraph 3.18.1 of the Prime Contract imposed a duty on Amtech to defend and indemnify Uniwest and we find that Uniwest was insured under Subdivision E-4 and Subdivision E-7 of the AIU Policy, we will reverse the contrary rulings of the circuit court and remand for further proceedings consistent with this opinion.
- statuteVa. Code § 11-4.4enactment date not established
The words that state the rule
Any provision contained in any contract relating to the planning or design of a building, structure or appurtenance thereto, including moving, demolition or excavation connected therewith, or any provision contained in any contract relating to the planning or design of construction projects other than buildings by which the architect or professional engineer performing such work purports to indemnify or hold harmless another party to the contract against liability for damage arising out of bodily injury to persons or damage to property suffered in the course of the performance of the contract, caused by or resulting solely from the negligence of such other party, his agents or employees, is against public policy and is void and unenforceable.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.