Indemnification - Understanding Subcontracting Notices and Consents

Indemnification clauses can be written very broadly.

Indemnification is where a contractor agrees to cover any costs or harm, or loss that the owner may sustain as a result of the contractor’s fault or the fault of its subcontractors. Indemnification in the subcontractor agreement agrees to identify the contractor and the owner for any loss or harm sustained by the contractor or owner as a result of the subcontractor. In addition to contractual indemnification, an obligation of indemnification can occur as a matter of the common law. A party's right to indemnification may arise from a contract or may be implied based upon the law's notion of what is fair and proper as between the parties. Implied, or common‐law, indemnity is a restitution concept which permits shifting the loss because to fail to do so would result in the unjust enrichment of one party at the expense of the other and is frequently employed in favor of one who is vicariously liable for the tort of another. Common‐law indemnification is generally available in favor of one who is held responsible solely by operation of law because of his relation to the actual wrongdoer.

Faculty

John A. Snow

Parsons Behle & Latimer