Chapter 17 - § 17.13 • VOID INDEMNIFICATION PROVISIONS

• Jurisdiction: Colorado

§ 17.13 • VOID INDEMNIFICATION PROVISIONS

Construction contracts and subcontracts usually have indemnification provisions that should be carefully considered.

It has not been uncommon for indemnity clauses to provide that indemnitors indemnify the indemnitees even if the indemnitees are partly at fault. An example:

To the fullest extent permitted by law, Subcontractor shall defend, indemnify and hold harmless Contractor, the Owner, the Project decision professionals and their respective directors, officers, managers, employees, agents and assigns from and against claims, damages, losses and expenses of every kind and nature whatsoever, arising out of or resulting, in whole or in part, from actual or alleged acts, omissions, or breaches of this Subcontract or the violation of any laws by Subcontractor or any entity or person for whom Subcontractor is legally responsible and regardless of whether or not such claim, damage, loss or expense is caused in part by the fault of a party indemnified under these provisions.

In contracts for construction in Colorado entered into before July 1, 2007, such provisions are probably enforceable, particularly if the language is clear and the contracts were between sophisticated parties.⁸⁵

However, provisions in construction contracts involving improvements to Colorado property entered into after July 1, 2007, that purport to indemnify against an indemnitee's own negligence in personal injury or property damage cases are statutorily rendered void. The intent of the 2007 Colorado statute is to allow indemnification only to the extent of the indemnitor's "degree or percentage of negligence or fault" (or that of its agents, representatives, subcontractors, or suppliers).⁸⁶

A fair and presumably enforceable indemnity provision under the 2007 Colorado statute might read:

To the fullest

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