NABET, NABET 2016 Conference

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Comparative Analysis of Anti- Indemnity Statutes
John Cameron

Building: Days Inn
Room: Room 2: Accounting
Date: 2016-10-27 10:00 AM – 10:45 AM
Last modified: 2021-04-07

Abstract


The enforcement of contractual indemnification clauses in business relationships needs to be considered in light of state anti-indemnity statutes.  Contractual indemnification clauses and additional insured coverages are interpreted to determine whether the contractual provisions violate certain legislative mandates.  So long as the contractual provisions do not purport to indemnify a company for its own acts of negligence, courts are reluctant to bar enforcement of contractual indemnification provisions.  The use of contractual indemnification clauses and additional insured coverages are a customary practice in the private and public sectors including businesses and governmental agencies.   Companies utilize contractual indemnification clauses and additional insured coverages to shift responsibilities from one party to another party and provide a contractual limitation of liability.   Contractual indemnification clauses and additional insured coverages by companies present a particular uncertainty because of recent anti-indemnity legislation.  According to a survey of anti-indemnity statutes by the Foundation of the American Subcontractors Association, Inc. (2013) and related case law, such reform legislation has been approved in many states.   Prior research to examine the variances in the provisions associated with anti-indemnity legislation within the United States has been limited. To address this gap in the literature, this paper will examine anti-indemnity legislative trends including third party indemnity, limitation of liability, partial fault, and contract interpretation.

 


Keywords


contractual indemnification, anti-indemnity statute, right of indemnity, limitations of liability