Duty to Defend and Indemnification
According to the American Bar Association (HERE), defense and indemnity clauses are routine devices used in construction contracts to shift responsibility for potential risks from one project participant to another. The terms defend and indemnify often appear in the same clause, but they are each typically understood to impose different obligations. However, even if the term defend does not appear in the indemnity clause, in some jurisdictions a defense may still be owed. It is therefore critical for construction attorneys to understand: (1) the difference between the duty to indemnify and the duty to defend and (2) that in some jurisdictions, an indemnity obligation automatically carries with it the duty to defend regardless of whether the duty to defend is expressly stated.
As part of the ae ProNet video series, David Ericksen, Esq., presents an informative discussion of 2 important parts of a contract, Defense and Indemnity. He discusses the impact of poorly drafted or too broad contracts which can lead to uncovered situations. Covered also is the concept of negligence, the limiting of defense obligation, and to an actual causation event. He ends with providing appropriate contract words that all design professional should use.
To view David’s video please click: Duty to Defend and Indemnification