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11 Jan, 2022

What you need to know about Indemnification Clauses

2021-12-30T13:46:56-06:00January 11th, 2022|Construction Contractor Advisor, Construction Contracts, Indemnity clauses|

Construction projects are risky, and parties allocate risk to reduce their own liabilities. Indemnification clauses shift risk from one party to another, but they come in may shapes and sizes. Therefore, it is important to read yours carefully. Terminology and Effect of Indemnification An “indemnitor” promises to compensate an “indemnitee” for injury or loss that the indemnitee incurs. Subcontractors are typically indemnitors that promise to “indemnify” the general contractor for [...]

3 Jun, 2020

Indemnity Obligations in the Age of COVID-19

2020-05-30T10:12:42-05:00June 3rd, 2020|Construction Contractor Advisor, COVID-19, Indemnity clauses, Nebraska Construction Law|

COVID-19 has created chaos in the construction world.  One of the biggest problems is staffing projects to meet deadlines on the project.  But, what if your company is hit with a COVID-19 outbreak and you cannot staff the job?  Have you already agreed to indemnify the upstream contractor or owner for any damages stemming from a COVID-19 outbreak?  We recommend reviewing your indemnity obligations to determine your risk and the [...]

4 May, 2015

Indemnity Clauses—What do they mean, and what should you be looking for?

2018-04-23T23:55:11-05:00May 4th, 2015|Construction Contractor Advisor, Construction Contracts|

It seems that every construction contract now-a-days, contains an indemnity clause.  Contractors should be reviewing these indemnity clauses very carefully to understand the potential scope of an indemnity obligation and your opportunity to negotiate changes. What is an indemnity Clause? An indemnity clause transfers risk from one party to another.  When a contractor signs an indemnity agreement, it is agreeing to pay for damages for which another party could be [...]

1 Mar, 2015

Can General Contractors Make Subcontractors Pay for OSHA Violations?

2018-04-23T23:55:11-05:00March 1st, 2015|Construction Contractor Advisor, OSHA|

OSHA has long held the opinion that general contractors may be held liable for subcontractor’s OSHA violations and the Eighth Circuit Court of Appeals, overseeing the Midwest, has agreed since 2009. To combat this risk, general contractors would be well served to incorporate targeted indemnity provisions into their subcontracts that require subcontractors to pay for all claims and costs associated with subcontractor caused OSHA violations. OSHA’s Multi-Employer Policy OSHA’s Multi-Employer [...]

11 Jun, 2014

Contribution Among Insurers – Basic Principles

2018-04-23T20:59:43-05:00June 11th, 2014|Commercial General Liability (CGL), Midwest Insurance Law Guide|

Hot off the presses!  A recent Nebraska case, American Family Mut. Ins. Co. v. Regent Ins. Co., 288 Neb. 25 (May 2, 2014) provides us with many coverage nuggets to digest in the coming weeks!  We begin with a basic tenet that is rarely discussed: Contribution is allowed between two insurers who insure the same policyholder and the same risk. Contribution is an equitable remedy.  This means that a court will apply [...]

23 May, 2013

Additional Insured versus Indemnity—What’s the Difference?

2018-04-23T23:55:18-05:00May 23rd, 2013|Construction Contractor Advisor, Construction Contracts|

Most construction contracts require downstream contractors to indemnify or insure upstream contractors.  Isn't that just a way of saying the same thing twice?  No, under Nebraska law, and most states, a duty to indemnify may be void as against public policy, while naming an upstream contractor as an additional insured will provide more certainty that the downstream contractor’s insurer will cover a claim. An indemnity clause requires one party to pay [...]

8 Mar, 2013


2018-04-23T20:59:45-05:00March 8th, 2013|Additional insured coverage, Construction liability, Construction subrogation, Indemnity clauses, Insurance contract, Midwest Insurance Law Guide|

  Here are three simple rules for obtaining indemnity and insurance on a construction project if you are the owner or the General Contractor. #1.  Make all subcontractors add you as an additional insured on their CGL policies by endorsement.  Insist upon the ISO 1985 version, which would cover you for losses incurred even if it is your fault.  This is the broadest form available. #2.  Draft a contract with the subs that contains two separate clauses:  one [...]

25 Jan, 2013


2018-04-23T20:59:45-05:00January 25th, 2013|Additional insured coverage, Commercial General Liability (CGL), Complex insurance coverage, Contract liability coverage, Indemnity clauses, Insurance contract, Midwest Insurance Law Guide, Property and casualty|

I often discuss the role of the courts in broadening coverage for additional insureds in a Commercial General Insurance (CGL) policy.  Here is another case where a court has extending coverage – probably well beyond what the underwriter intended at the time the policy was issued.   In the case of Evanston Ins. Co. v. ATOFINA Petrochemicals, Inc., 256 S.W.3d 660, 666 (Tex. 2008), ATOFINA contracted with Triple S Industrial [...]

22 Jan, 2013


2018-04-23T20:59:45-05:00January 22nd, 2013|Commercial General Liability (CGL), Complex insurance coverage, Construction liability, Construction subrogation, Midwest Insurance Law Guide, Mutual waivers|

Because they are more and more commonly used, it is worth our time to look into these clauses and understand how they affect both the policyholder and the insurance company.  Let’s start with discussing what these clauses mean.    What is a mutual waiver of subrogation clause?  These clauses are commonly found in construction and landlord tenant contracts.  The language insists that the parties to the contract mutually agree to waive [...]

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