Construction Anti-Indemnity Statutes Legislative Restrictions Upon Additional Insured Coverage The following states have passed legislation which restricts a party’s ability to provide liability coverage to another party as an additional insured: California Cal. Civ. Code Ann. § 2782 Colorado Colo. Rev. Stat. § 13-12.111.5 Georgia Ga. Code § 12-8-2 Kansas Kan. Stat. Ann. § 16-121(c) Montana Mont. Rev. Code § 28-2-2111 New Mexico N.M. Stat. Ann. § 56-7-1 Oklahoma Okla. Stat. § 15-221 Oregon Or. Rev. Stat. § 30.140 Louisiana La. Rev. Stat. Ann. § 9:2780 Texas Tex. Ins. Code Ann. § 151.104 This survey of state laws is a quick reference guide that should only be used as a starting point in researching the applicable law to a given situation. Depending on the facts of each situation, there may be additional legal authority which impacts the analysis of a particular issue. STATE CONSTRUCTION ANTI-INDEMNITY STATUTES Type of Indemnity Allowed State AK Types of Persons Contracts Affected All Construction and Design Contracts AL No Yes Concurrent Negligence Full Indemnity Alaska Stat. § 45.45.900 Yes No statute. See Indus. Tile, Inc. v. Stewart, 388 So.2d 171, 175 (Ala. 1980) (“between private parties, indemnity contracts are enforceable if the contract clearly indicates an intention to indemnify against the consequences of the indemnitee's negligence, and such provision was clearly understood by the indemnitor, and there is not shown to be evidence of a disproportionate bargaining position in favor of the indemnitee.”); Doster Constr. Co., Inc. v. Marathon Elec. Contractors, Inc., 32 So.3d 1277, 1283 n.2 (Ala. 2009) (“[i]ndemnification for an indemnitee’s own negligence requires ‘clear and unequivocal language.’”) No Private Construction and Design Contracts No *Allows for indemnification of an adjacent property owner. Yes No No All Construction and Design Contracts after July 31, 2007 Statute Partial Indemnity Yes Public Construction and Design Contracts AZ AR Sole Negligence of Indemnitee Yes Ariz. Rev. Stat. § 34-226 (Definitions) Ariz. Rev. Stat. § 41-2586 Ariz. Rev. Stat. § 34-226 (Definitions) Ariz. Rev. Stat. § 32-1159 Yes Ark. Code Ann. § 4-56-104 Indemnification for Vicarious Liability Only This is a general survey of state statutes through June 2016. The listing may not reflect statutory changes or court decisions which may modify the scope or import of the statutes listed above. This document should not be construed as an attempt to offer or render a legal opinion or provide legal advice. Indemnification of Sole Negligence Prohibited All states allow indemnification of sole negligence of indemnitor. Rev. 6-2016 No Anti-Indemnity Statute This survey of state laws is a quick reference guide that should only be used as a starting point in researching the applicable law to a given situation. Depending on the facts of each situation, there may be additional legal authority which impacts the analysis of a particular issue. STATE CONSTRUCTION ANTI-INDEMNITY STATUTES Type of Indemnity Allowed State Types of Persons Contracts Affected Residential Construction and Design Contracts, post Jan 1, 2008. CA Sole Negligence of Indemnitee Full Indemnity No No *Allows for indemnification of an adjacent property owner. All Construction Contracts entered into after Jan. 1, 2013 No "Public Entity" Construction and Design Contracts No Construction Agreements No All Construction Contracts. No Mention of Design. No Statute Partial Indemnity Yes Commercial Construction and Design Contracts, post Jan 1, 2008. CO CT Concurrent Negligence Yes Cal. Civ. Code § 2782(c ) & (e)(1) Cal. Civ. Code § 2782.1 Cal. Civ. Code § 2782.1, 2782.05 & 2783 Indemnification for active negligence of indemnitee prohibited. Indemnification provisions limited to scope of work of indemnitor. Yes Colo. Rev. Stat. § 13-50.5-102(8) Yes *Up to extent of Colo. Rev. Stat. § 13-21-111.5 indemnitor’s liability Yes Conn. Gen. Stat. § 52-572k Indemnification for Vicarious Liability Only This is a general survey of state statutes through June 2016. The listing may not reflect statutory changes or court decisions which may modify the scope or import of the statutes listed above. This document should not be construed as an attempt to offer or render a legal opinion or provide legal advice. Indemnification of Sole Negligence Prohibited All states allow indemnification of sole negligence of indemnitor. Rev. 6-2016 No Anti-Indemnity Statute This survey of state laws is a quick reference guide that should only be used as a starting point in researching the applicable law to a given situation. Depending on the facts of each situation, there may be additional legal authority which impacts the analysis of a particular issue. STATE CONSTRUCTION ANTI-INDEMNITY STATUTES Type of Indemnity Allowed State DE Types of Persons Contracts Affected All Construction and Design Contracts DC FL Sole Negligence of Indemnitee Concurrent Negligence Full Indemnity No Yes Yes Del. Code Ann. tit. 6, § 2704; see also Chrysler Corp. v. Merrell & Garaguso, Inc., 796 A.2d 648 (Del. 2002) (one party to a construction contract may not agree to indemnify the other party for the latter’s own negligence; requirement to purchase insurance may or may not be unenforceable dependent on circumstances). No statute. See N.P.P. Contractors, Inc. v. John Canning & Co., 715 A.2d 139 (D.C. 1998) (indemnification contract allowed as it was clear and unambiguous); Steele Foundations, Inc. v. Clark Constr. Group, Inc., 937 A.2d 148 (D.C. 2007) (same). Yes No, unless No, unless there there is is monetary limit monetary limit on the extent of on the extent the All Construction and Design of the indemnification Contracts (see exception per indemnification that bears a Fla. Stat. § 725.08) that bears a reasonable reasonable commercial commercial relationship to relationship to the contract. the contract. Statute Partial Indemnity Yes Fla. Stat. § 725.06 Fla. Stat. § 725.08 (Allows a public agency to require a design professional to hold that agency harmless for design professional's negligence, recklessness or wrongdoing.) Indemnification for Vicarious Liability Only This is a general survey of state statutes through June 2016. The listing may not reflect statutory changes or court decisions which may modify the scope or import of the statutes listed above. This document should not be construed as an attempt to offer or render a legal opinion or provide legal advice. Indemnification of Sole Negligence Prohibited All states allow indemnification of sole negligence of indemnitor. Rev. 6-2016 No Anti-Indemnity Statute This survey of state laws is a quick reference guide that should only be used as a starting point in researching the applicable law to a given situation. Depending on the facts of each situation, there may be additional legal authority which impacts the analysis of a particular issue. STATE CONSTRUCTION ANTI-INDEMNITY STATUTES State Types of Persons Contracts Affected GA All Construction Contracts, and Engineering, Architectural and LandSurveying Contracts. HI All Construction Contracts. No Mention of Design. IA Type of Indemnity Allowed Concurrent Negligence Statute Sole Negligence Full Partial of Indemnitee Indemnity Indemnity Yes for Construction Contracts. Yes for Engineering, No for Architectural No Ga. Code Ann. § 13-8-2(b) and (c) Engineering, and LandArchitectural Surveying and LandContracts. Surveying Contracts. No No ID All Construction Contracts. No Mention of Design. No IL All Construction Contracts. No Mention of Design. No IN All Construction and Design Contracts. Highway Contracts are excepted. No KS Yes All Construction Agreements No Hawaii Rev. Stat. § 431:10-222 Yes Yes Iowa Code Ann. § 537A.5 Idaho Code § 29-114 Yes Yes 740 Ill. Comp. Stat. Ann. 35/1 Ind. Code Ann. § 26-2-5-1, § 26-2-5-2 Yes Kan. Stat. Ann. § 16-121(b) (no indemnification for promisee’s own negligence or intentional acts); Kan. Stat. Ann. § 16-121(c) (no additional insured coverage for party’s own negligence or intentional acts or omissions). Indemnification for Vicarious Liability Only This is a general survey of state statutes through June 2016. The listing may not reflect statutory changes or court decisions which may modify the scope or import of the statutes listed above. This document should not be construed as an attempt to offer or render a legal opinion or provide legal advice. Indemnification of Sole Negligence Prohibited All states allow indemnification of sole negligence of indemnitor. Rev. 6-2016 No Anti-Indemnity Statute This survey of state laws is a quick reference guide that should only be used as a starting point in researching the applicable law to a given situation. Depending on the facts of each situation, there may be additional legal authority which impacts the analysis of a particular issue. STATE CONSTRUCTION ANTI-INDEMNITY STATUTES State KY Types of Persons Contracts Affected All Construction Contracts. No Mention of Design. Type of Indemnity Allowed Concurrent Negligence Sole Negligence Full Partial of Indemnitee Indemnity Indemnity No Statute Yes Ky. Rev. Stat. Ann. § 371.180 All Construction and Design Contracts No Yes La. Rev. Stat. Ann. § 9:2780.1 (applicable to contracts entered into after Jan. 1, 2011); but see Roundtree v. New Orleans Aviation Bd., 844 So.2d 1091 (La. Ct. App. 2003) (for contracts entered into before Jan. 1, 2011, indemnification is permitted if the intent is expressed in unequivocal terms). All public works contracts between a contractor and a public entity or between a contractor and design specialist. No Yes La. Rev. Stat. Ann. § 38:2216 LA ME MD All Construction Contracts. MA All contracts in which a subcontractor agrees to indemnify another for injury or damage not caused by the subcontractor. Yes Yes No statute. See State Farm Mut. Ins. Co. v. Koshy, 995 A.2d 651 (Me. 2010) (indemnification contracts allowed if clearly stated). No Yes Md. Cts. & Jud. Proc. Code § 5-401 Yes Mass. Gen. Laws Ann. ch. 149, § 29C; see also Johnson v. Modern Cont’l Constr. Co., Inc., 731 N.E.2d 96 (Mass. App. Ct. 2000) (explaining application of statute); Kelly v. Dimeo, Inc., 581 N.E.2d 1316 (Mass. App. Ct. 1991) (allowing full indemnity). No Indemnification for Vicarious Liability Only This is a general survey of state statutes through June 2016. The listing may not reflect statutory changes or court decisions which may modify the scope or import of the statutes listed above. This document should not be construed as an attempt to offer or render a legal opinion or provide legal advice. Indemnification of Sole Negligence Prohibited All states allow indemnification of sole negligence of indemnitor. Rev. 6-2016 No Anti-Indemnity Statute This survey of state laws is a quick reference guide that should only be used as a starting point in researching the applicable law to a given situation. Depending on the facts of each situation, there may be additional legal authority which impacts the analysis of a particular issue. STATE CONSTRUCTION ANTI-INDEMNITY STATUTES Type of Indemnity Allowed State MI Types of Persons Contracts Affected All contracts "relative to" construction. No specific mention of design contracts or design professionals. Sole Negligence of Indemnitee Concurrent Negligence Full Indemnity No Yes Yes, if injury is attributable to breach of duty, or a negligent or wrongful act or omission. MN All construction contracts. No MO All construction contracts. (Exception for contracts between state and governmental agencies, or between such entities and a private person.) No Statute Partial Indemnity Mich. Comp. Laws Ann. 691.991 Note: There is some confusion over whether the anti-indemnity statute applies to insurance obligations. The statute on its face does not apply to insurance. See Sentry Ins. Co. v. Great Lakes Steel. Corp., 147 Mich. App.214 (1985), c.f. Peeples v. City of Detroit, 99 Mich. App.285 (1980); Chrysler Corp. v. Skyline Industrial Services, et. al, 448 Mich. 113 (1995). Minn. Stat. Ann. § 337.01 (Definitions) Minn. Stat. Ann. § 337.02 Yes Mo. Ann. Stat. § 434.100 Indemnification for Vicarious Liability Only This is a general survey of state statutes through June 2016. The listing may not reflect statutory changes or court decisions which may modify the scope or import of the statutes listed above. This document should not be construed as an attempt to offer or render a legal opinion or provide legal advice. Indemnification of Sole Negligence Prohibited All states allow indemnification of sole negligence of indemnitor. Rev. 6-2016 No Anti-Indemnity Statute This survey of state laws is a quick reference guide that should only be used as a starting point in researching the applicable law to a given situation. Depending on the facts of each situation, there may be additional legal authority which impacts the analysis of a particular issue. STATE CONSTRUCTION ANTI-INDEMNITY STATUTES Type of Indemnity Allowed State Types of Persons Contracts Affected MS All construction contracts. MT All private construction contracts. Applies to all Public Construction Contracts NE NV All Construction and Design Contracts. All contracts (except worker’s compensation see Nev. Rev. Stat. Ann. § 616B.609) Sole Negligence of Indemnitee Concurrent Negligence Full Indemnity Statute Partial Indemnity No Yes Miss. Code Ann. § 31-5-41 No Yes Mont. Code Ann. § 28-2-2111 No Yes No Yes Neb. Rev. Stat. § 25-21,187(1) Yes No statute. See George L. Brown Ins. Agency, Inc. v. Star Ins. Co., 237 P.3d 92 (Nev. 2010) (indemnification contracts allowed if clearly and explicitly stated); Reyburn Lawn & Landscape Designers, Inc. v. Plaster Dev. Co., Inc., 255 P.3d 268 (Nev. 2011) (intent to indemnify for contributory negligence and sole negligence of the indemnitors must be explicitly stated, and general provision purporting to indemnify the indemnitee against “any and all claims” insufficient to achieve this goal). No Mont. Code Ann. § 18-2-124 Indemnification for Vicarious Liability Only This is a general survey of state statutes through June 2016. The listing may not reflect statutory changes or court decisions which may modify the scope or import of the statutes listed above. This document should not be construed as an attempt to offer or render a legal opinion or provide legal advice. Indemnification of Sole Negligence Prohibited All states allow indemnification of sole negligence of indemnitor. Rev. 6-2016 No Anti-Indemnity Statute This survey of state laws is a quick reference guide that should only be used as a starting point in researching the applicable law to a given situation. Depending on the facts of each situation, there may be additional legal authority which impacts the analysis of a particular issue. STATE CONSTRUCTION ANTI-INDEMNITY STATUTES State NH NJ NM Types of Persons Contracts Affected Type of Indemnity Allowed Concurrent Negligence Sole Negligence Full Partial of Indemnitee Indemnity Indemnity Yes Statute N.H. Rev. Stat. Ann. § 338-A:1 (2010) (Design Professionals) N.H. Rev. Stat. Ann. § 338-A:2 (2010) (All contracts) All contracts No All construction contracts. No Yes N.J. Stat. Ann. § 2A:40A-1 All agreements where the indemnitee is a design professional and liability arises out of design services No Yes N.J. Stat. Ann. § 2A:40A-2 All construction-related design contracts. No Yes N.M. Stat. Ann. § 56-7-1; see also J.R. Hale Contracting Co., Inc. v. Union Pac. R.R., 179 P.3d 579 (N.M. Ct. App. 2007) (explaining statute). Indemnification for Vicarious Liability Only This is a general survey of state statutes through June 2016. The listing may not reflect statutory changes or court decisions which may modify the scope or import of the statutes listed above. This document should not be construed as an attempt to offer or render a legal opinion or provide legal advice. Indemnification of Sole Negligence Prohibited All states allow indemnification of sole negligence of indemnitor. Rev. 6-2016 No Anti-Indemnity Statute This survey of state laws is a quick reference guide that should only be used as a starting point in researching the applicable law to a given situation. Depending on the facts of each situation, there may be additional legal authority which impacts the analysis of a particular issue. STATE CONSTRUCTION ANTI-INDEMNITY STATUTES State NY NC ND Types of Persons Contracts Affected Type of Indemnity Allowed Concurrent Negligence Sole Negligence Full Partial of Indemnitee Indemnity Indemnity Statute All construction contracts. No Yes N.Y. Gen. Oblig. Law § 5-322.1 Design professional seeking indemnity for liability arising out of defective maps, plans, design or specifications. No Yes N.Y. Gen. Oblig. Law § 5-324; see also Brooks v. Judlau Contracting, Inc., 898 N.E.2d 549 (N.Y. 2008) (interpreting the statute). All construction and design contracts. No Yes All contracts where contractor indemnifies owner or its agents for design errors. No Yes All contracts. Yes Yes N.C. Gen. Stat. Ann. § 22B-1 N.D. Cent. Code § 9-08-02.1 (owners cannot be indemnified by contractors for design errors of the owner or the owner’s agents) No Statute. See Kondrad ex rel. McPhail v. Bismarck Park Dist., 655 N.W.2d 411 (N.D. 2003) (indemnification agreements allowed if clearly stated) but see N.D. Cent. Code § 9-08-02 (parties cannot be indemnified for negligent violation of law) Indemnification for Vicarious Liability Only This is a general survey of state statutes through June 2016. The listing may not reflect statutory changes or court decisions which may modify the scope or import of the statutes listed above. This document should not be construed as an attempt to offer or render a legal opinion or provide legal advice. Indemnification of Sole Negligence Prohibited All states allow indemnification of sole negligence of indemnitor. Rev. 6-2016 No Anti-Indemnity Statute This survey of state laws is a quick reference guide that should only be used as a starting point in researching the applicable law to a given situation. Depending on the facts of each situation, there may be additional legal authority which impacts the analysis of a particular issue. STATE CONSTRUCTION ANTI-INDEMNITY STATUTES Type of Indemnity Allowed State Types of Persons Contracts Affected Concurrent Negligence Sole Negligence of Indemnitee Full Indemnity Statute Partial Indemnity OH All construction and design contracts. No Yes Ohio Rev. Code Ann. § 2305.31. Note that there is a conflict amongst Ohio’s appellate courts regarding the application of the statute to additional insured endorsements. Compare Buckeye Union Ins. Co. v. Zavarella Brothers Constr. Co, 699 N.E.2d 127 (Ohio Ct. App. 1997) (AI endorsement barred) with Stickovich v. City of Cleveland, 757 N.E.2d 50 (Ohio Ct. App. 2001) (AI endorsement permitted). OK Construction Agreements No Yes Okla. Stat. Ann. tit. 15, § 221 Note: This statute may limit additional insured coverage. No Yes Or. Rev. Stat. Ann. § 30.140; see also Walsh Constr. Co. v. Mut. Enumclaw, 104 P.3d 1146 (Or. 2005) (Statute interpreted to apply to additional insured claims) No Yes 68 Pa. Cons. Stat. Ann. § 491 OR PA All construction and design contracts. Does not apply to railroads as defined in O.R.S 824.200. All construction design contracts where design professional is the indemnitee. Construction contracts. Yes Yes No statute. See Ocean Spray Cranberries, Inc. v. Refrigerated Food Distribs., Inc., 936 A.2d 81 (Pa. Super. Ct. 2007) (indemnification contracts allowed if clearly stated) Indemnification for Vicarious Liability Only This is a general survey of state statutes through June 2016. The listing may not reflect statutory changes or court decisions which may modify the scope or import of the statutes listed above. This document should not be construed as an attempt to offer or render a legal opinion or provide legal advice. Indemnification of Sole Negligence Prohibited All states allow indemnification of sole negligence of indemnitor. Rev. 6-2016 No Anti-Indemnity Statute This survey of state laws is a quick reference guide that should only be used as a starting point in researching the applicable law to a given situation. Depending on the facts of each situation, there may be additional legal authority which impacts the analysis of a particular issue. STATE CONSTRUCTION ANTI-INDEMNITY STATUTES State Types of Persons Contracts Affected Type of Indemnity Allowed Concurrent Negligence Sole Negligence Full Partial of Indemnitee Indemnity Indemnity RI All construction and design contracts. No SC All construction and design contracts. Electric utility, RR carriers, SCPSA exempted. No Yes SD All construction and design contracts. No Yes TN All Construction Contracts No All construction-related design contracts. No TX Construction Contracts No Yes Statute R.I. Gen. Laws § 6-34-1 S.C. Code Ann. § 32-2-10 S.D. Codified Laws § 56-3-18 Tenn. Code Ann. § 62-6-123; but see Posey v. Union Carbide Corp., 507 F. Supp. 39 (D. Tenn. 1980) (limiting the availability of additional insured coverage when the underlying contract between the named insured and additional insured violates the statute); Rentenbach Constructors, Inc. v. Bowen, 2000 WL 1690286 (Tenn. Ct. App. Nov. 13, 2000) (interpreting statute). Yes Yes Tex. Civ. Prac. & Rem. Code § 130.002(1)&(2) Tex. Ins. Code Ann. § 151.102; see also Tex. Ins. Code Ann. § 151.103 (exception for bodily injury/death of employee of indemnitor, its agent, or its subcontractor); Tex. Ins. Code Ann. § 151.104 (provision in contract requiring additional insured coverage for indemnitee’s own negligence prohibited). Indemnification for Vicarious Liability Only This is a general survey of state statutes through June 2016. The listing may not reflect statutory changes or court decisions which may modify the scope or import of the statutes listed above. This document should not be construed as an attempt to offer or render a legal opinion or provide legal advice. Indemnification of Sole Negligence Prohibited All states allow indemnification of sole negligence of indemnitor. Rev. 6-2016 No Anti-Indemnity Statute This survey of state laws is a quick reference guide that should only be used as a starting point in researching the applicable law to a given situation. Depending on the facts of each situation, there may be additional legal authority which impacts the analysis of a particular issue. STATE CONSTRUCTION ANTI-INDEMNITY STATUTES Type of Indemnity Allowed State UT Types of Persons Contracts Affected All Construction Contracts between Owner and another party (All other indemnification provisions in construction contracts are void) VT Sole Negligence of Indemnitee Yes Utah Code Ann. § 13-8-1, Utah Code Ann. § 13-8-2 Yes No statute. See Tateosian v. Vermont, 945 A.2d 833 (Vt. 2007) (indemnification contracts allowed if clearly stated) Yes Va. Code Ann. § 11-4.1 No WA All Construction Contracts No WV All Construction Contracts No WY Statute Partial Indemnity Yes All Construction Contracts All Construction Contracts Full Indemnity No VA WI Concurrent Negligence Yes Yes W. Va. Code § 55-8-14 No statute. See Gunka v. Consolidated Papers, Inc., 508 N.W.2d 426 (Wis. Ct. App. 1993) (indemnification of sole negligence of indemnitee allowed if provision is clear and unambiguous); but see Wis. Stat. Ann. § 895.447 renders a provision in contract purporting to limit or eliminate tort liability void, though it has been narrowly interpreted; Gerdmann by Habush v. U.S. Fire Ins. Co., 350 N.W.2d 730 (Wis. App. 1984) (holding indemnity provision in contract did not violate statute and was a question of law). Yes Yes Wash. Rev. Code Ann. § 4.24.115; Gilbert H. Moen Co. v. Island Steel Erectors, Inc., 912 P.2d 472 (Wash. 1996) (interpreting statute). Yes No statute. See Union Pac. Resources Co. v. Dolenc, 86 P.3d 1287 (Wyo. 2004) (indemnification agreements allowed if clearly stated). Indemnification for Vicarious Liability Only This is a general survey of state statutes through June 2016. The listing may not reflect statutory changes or court decisions which may modify the scope or import of the statutes listed above. This document should not be construed as an attempt to offer or render a legal opinion or provide legal advice. Indemnification of Sole Negligence Prohibited All states allow indemnification of sole negligence of indemnitor. Rev. 6-2016 No Anti-Indemnity Statute