In most construction projects, general contractors require subcontractors to indemnify the general contractor for the subcontractor’s negligent actions. Meaning, if the subcontractor’s negligence causes injury to a third-party and that third-party sues the general contractor, the subcontractor agrees to defend the general contractor. Often times, general contractors will attempt to go a step further and seek indemnification from the subcontractor for injuries beyond the subcontractor’s control. In Massachusetts, such provisions are void.
The Massachusetts statute, MGL 149 § 29C, provides the following:
Any provision for or in connection with a contract for construction, reconstruction, installation, alteration, remodeling, repair, demolition or maintenance work, including without limitation, excavation, backfilling or grading, on any building or structure, whether underground or above ground, or on any real property, including without limitation any road, bridge, tunnel, sewer, water or other utility line, which requires a subcontractor to indemnify any party for injury to persons or damage to property not caused by the subcontractor or its employees, agents or subcontractors, shall be void.
A contractual indemnification clause is valid against a subcontractor where the clause is limited to indemnification for injuries or damages that were caused by the subcontractor. See Collins v. Kiewitt Constr. Co., 2 Mass.L.Rptr. 416 (Mass.Super. 1994). Moreover, there is nothing in MGL 149 § 29C that specifically prohibits a proportionate indemnification in subcontracts (e.g. a subcontractor can be required to indemnify a general contractor for the subcontractor’s “share” of the fault). However, MGL 149 § 29C specifically prohibits provisions that “obligate a subcontractor to provide indemnification for losses that it in no way caused.” N. Am. Site Developers, Inc. v. MRP Site Dev., Inc., 63 Mass.App.Ct. 529, 535 (2005).
If you are a general contractor, it is important to review the contracts you have with your subcontractors. If drafted in contravention of MGL 149 § 29C, your indemnification provision may be rewritten by a court, which can have unpredictable consequences. If you are a subcontractor, you should carefully review the contract with your general contractor to ensure that the general contractor is not attempting to force you into an indemnification that is otherwise unenforceable. If you have any questions or concerns about the indemnification provision in your contract, you should contact a Massachusetts construction lawyer.