Section 8.17 Indemnification

• Library: Contracts 2016 Supp

C. (§8.17) Indemnification

It is unusual to find a construction contract that does not deal with the issue of indemnification. Indemnification provisions are not to be taken lightly because they are used to shift risk from one party to another. Frequently, owners of property are sued by people who allege damage to persons or property caused by defective construction, including construction workers who are precluded from suing their employers under the Missouri workers’ compensation law, Chapter 287, RSMo. Owners (and other “upstream” parties) want a clear means of requiring the parties responsible for the defective construction to take care of the problem they allegedly caused. Although, at common law, parties are entitled to claim a right of indemnification, most sophisticated contractors and owner/developers include in their contracts extensive and explicit indemnification clauses that tend to require not just indemnification against loss but also exoneration and defense.

Counsel reviewing a construction contract can expect to see a wide variety of indemnity clauses, everything from “broad form” (indemnifying the other party...