Will a Virginia court enforce our clause limiting or excluding our own liability?
Not against a personal-injury claim, and elsewhere only as far as the words plainly go. Virginia is one of the states in which a pre-injury release of liability for future negligence causing personal injury is void: "Therefore, we conclude here, based on Johnson, that the pre-injury release provision signed by Hiett is prohibited by public policy and, thus, it is void" (Hiett v. Lake Barcroft Community Ass'n, applying Johnson's Adm'x v. Richmond & Danville R.R. Co., 86 Va. 975 (1890)). Hiett also fixes the rule's reach, and it is wider than the carrier facts of Johnson suggest: "This Court emphasized that its holding was not based on the fact that the railroad company was a common carrier. Rather, this Court found that such provisions for release from liability for personal injury which may be caused by future acts of negligence are prohibited 'universally.'" Johnson's own words, as Hiett renders them, are that "to hold that it was competent for one party to put the other parties to the contract at the mercy of its own misconduct . . . can never be lawfully done where an enlightened system of jurisprudence prevails. Public policy forbids it, and contracts against public policy are void." And Hiett draws the boundary of the hundred years of decisions since: "this Court's decisions after Johnson have been limited to upholding the right to contract for the release of liability for property damage, as well as indemnification from liability to third parties for such damage". Where the loss is property or economic rather than personal, the clause is construed as written, and an exemption the drafter did not express plainly will not be implied: in Landmark HHH the Supreme Court of Virginia held a mutual insurance-and-release section did not bar the tenant's suit, saying "We agree with the circuit court that had Landmark, as the drafter of the lease, desired to be exempt from all liability for losses sustained by Park as the result of the common hazards to which the property would be subject, it was required to express the exemption in the plain language of the lease."
The trap
The Virginia surprise is that the line is drawn by the KIND of clause, not by how well it is drafted: Hiett voids a pre-injury RELEASE for personal injury outright, while an INDEMNITY against personal injury caused by the indemnitee's own future negligence is enforceable outside construction work (W.R. Hall, restating Estes); in a construction contract Va. Code § 11-4.1 voids a provision by which the contractor purports to indemnify another party against liability for bodily injury "caused by or resulting solely from the negligence of such other party or his agents or employees". The reason the Court gives for the line is the one it states itself: the purpose of a pre-injury release is "to prospectively extinguish one party's right to recover for future bodily injuries caused to that one party by the other party's negligence", whereas "the purpose of an indemnity provision is to pre-determine how potential losses incurred during the course of a contractual relationship will be distributed between the potentially liable parties" (Estes). A clause that is drafted as a release cannot be rescued by arguing it is really a risk allocation. Landmark HHH adds the ordinary drafting point at the other end of the spectrum: a clause whose words are aimed at insurance proceeds and double recovery does not become a general exemption from liability because that is what the drafter meant.
13 authorities
The words that state the rule
We agree with Hiett that the above cases have not modified or altered the holding in Johnson. Therefore, we conclude here, based on Johnson, that the pre-injury release provision signed by Hiett is prohibited by public policy and, thus, it is void.
The words that state the rule
We agree with the circuit court that had Landmark, as the drafter of the lease, desired to be exempt from all liability for losses sustained by Park as the result of the common hazards to which the property would be subject, it was required to express the exemption in the plain language of the lease.
- 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.
The words that state the rule
The plain language of this section only prohibits Park from obtaining a double recovery on a loss sustained and requires Park to release Landmark from any claim of subrogation by her insurer.
The words that state the rule
In holding that the release language was invalid because it violated public policy, this Court stated: [T]o hold that it was competent for one party to put the other parties to the contract at the mercy of its own misconduct. . . can never be lawfully done where an enlightened system of jurisprudence prevails. Public policy forbids it, and contracts against public policy are void. *195 86 Va. at 978 , 11 S.E. at 829 . This Court emphasized that its holding was not based on the fact that the railroad company was a common carrier. Rather, this Court found that such provisions for release from liability for personal injury which may be caused by future acts of negligence are prohibited “universally.”
The words that state the rule
As noted by Hiett, the cases following Johnson have not eroded this principle. Instead, this Court’s decisions after Johnson have been limited to upholding the right to contract for the release of liability for property damage, as well as indemnification from liability to third parties for such damage.
The words that state the rule
Other cases decided by this .Court since Johnson have upheld provisions for indemnification against future property damage claims. In none of these cases, however, did the Court address the issue whether an indemnification provision would be valid against a claim for personal injury.
The words that state the rule
Since Novins had no ownership interest in or control over the operation of Lake Bar-croft, she had no duty to warn Hiett of any dangerous condition therein. See Busch v. Gaglio, 207 Va. 343, 348 , 150 S.E.2d 110, 114 (1966). Therefore, Hiett’s assertion that Novins had a duty to warn him of the condition of the lake bottom, fails as a matter of *197 law, and we conclude that the trial court did not err in dismissing Novins from the case. Accordingly, we will affirm in part and reverse in part the judgment of the trial court, and we will remand this case for further proceedings consistent with the principles expressed in this opinion.
- case273 Va. 350W.R. Hall, Inc. v. Hampton Roads Sanitation DistrictVa.decided 2007read it at the source ↗
The words that state the rule
For these reasons, as well as the reasons stated in Estes, we reject W. R. Hall’s assertion that a contractual 9 indemnification provision is void as against public policy insofar as it indemnifies a party against liability for future acts of negligence causing personal injury. 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.
The words that state the rule
Indeed, a further provision of the lease expressly limited Landmark’s liability, stating that “[i]n no event shall Landlord be liable to Tenant for loss of business or consequential damages.” Landmark is, in effect, asking the Court to find implicit in the lease a term that it could have expressly included, but failed to do so. However, when interpreting a contract, we construe it as written and will not add terms the parties themselves did not include. TM Delmarva Power, L.L.C. v. NCP of Virginia, L.L.C., 263 Va. 116, 119, 557 S.E.2d 199, 200 (2002). Accordingly, we hold that the circuit court did not err in holding that Landmark’s failure to provide a serviceable, leak-free roof constituted a breach of its lease with Park and that the lease did not absolve Landmark from liability for the damage sustained by Park with respect to her inventory.
The words that state the rule
While Johnson and Hiett clearly prohibit pre-injury release provisions relating to personal injury, we agree with Estes that such provisions are substantively different from indemnity provisions with regard to their purpose, effect, and public policy implications. The purpose of pre-injury release provisions such as those in Johnson and Hiett is to prospectively extinguish one party’s right to recover for future bodily injuries caused to that one party by the other party’s negligence.
The words that state the rule
In contrast, the purpose of an indemnity provision is to pre-determine how potential losses incurred during the course of a contractual relationship will be distributed between the potentially liable parties. See Safeway, 270 Va. at 289, 619 S.E.2d at 79. Moreover, indemnity provisions, including those indemnifying a party against future liability for personal injury caused by its own negligence, do not invoke the same public policy concerns as pre-injury release agreements.
- 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.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.