Tag Archives: indemnity

Subcontractor’s Indemnification with General Contractor: Is it Void?

By on November 9, 2015

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. 


Property Managers – Ensure The Property Owner Indemnifies You

By on March 23, 2015

Most property management companies focus their efforts on maintaining the day-to-day operations of their properties and really do try to address their tenants’ requests. Often times, it is a thankless job. A quick Google search of many property management companies will reveal horror stories about tenants’ negative experiences. When something goes wrong at a property, the tenant will make demands on the property manager, often times without including the property owner in those discussions. I have been guilty of this myself. If such a problem ultimately leads to litigation, the tenant will often sue both the property management company and the owner. If the property management company does not have adequate indemnification from the property owner, the property manager may have to defend the tenants’ claims, even if the owner actually caused the problem (e.g. a defect in the building).

As a Boston property management attorney, I recently had a large property management company that had to unnecessarily litigate a mold issue with one of its tenants. Obviously, an allegation of “mold” is very serious. The problem is that most mold is black in color and therefore many people may think they have “black mold” (Stachybotrys) even if they do not. Even so, an allegation of “black mold” is enough to give most people pause and can lead to very lengthy litigation. In my client’s particular case, the tenant sued both the property management company and the property owner when mold was discovered shortly after a flood. Prior to commencing litigation, the tenant gave notice to the property owner who attempted to remediate the mold. Unfortunately, our client did not have any sort of indemnification clause in its agreement with the property owner and, as such, the client was stuck litigating the case for years until it ultimately settled.

Generally speaking, an indemnification clause in the property management context states that an owner will indemnify a property management company (that is, step into their shoes and/or defend the property management company) for damages that are beyond the property manager’s control. Typical situations involve defects in the property, natural disasters and work undertaken by the owner. To be clear, a simple indemnification clause will not relieve property managers of all liability. For example, a property manager cannot refuse to act or to address property issues. In our client’s case, however, the owner was admittedly responsible for the damage as well as the remediation. As such, had our client had a comprehensive indemnification clause in its management agreement, it could have recouped its litigation costs from the owner. Instead, the case dragged on for over a year, several depositions were taken, and it actually reached the point where the parties hired their own professional experts.

An indemnification clause is not a cure-all, but it is a crucial starting point. A clause that is too broad (e.g. one that includes indemnification for gross negligence) may not be enforceable. So, if you are a property management company and do not have an indemnification clause with your clients, change that immediately. If you do have one, make sure you have your lawyer review it to ensure that it offers you adequate coverage and is enforceable. This seemingly simple process could save you thousands of dollars in unnecessary litigation costs.