Another Twist on Uniwest and Indemnification

Christopher G. Hill | Construction Law Musings

Welcome to 2020!  I thought I’d start with a case that adds a twist to the Uniwest case that has been discussed previously here at Construction Law Musings.  Uniwest essentially held that indemnification provisions in construction contracts that purport to indemnify an indemnitee for its own negligence violates Virginia Code Sec. 11-4.1.  In short, Uniwest and later cases applying it state that an indemnification provision that does not add an exception for an indemnitees own negligence should be held void and unenforceable.

A case out of the City of Roanoke, Virginia Circuit Court extends this principal beyond the simple words of the contract.  In Morris v. DSA Roanoke, the court considered a third party claim for indemnification where the indemnification provision of the operative construction contract did not on its face violate either statute or Uniwest. The basic facts are that Morris sued DSA purely on theories of negligence.  DSA brought a third party complaint against Thomas Builders based upon its indemnification rights under its contract with Thomas Builders.  Despite finding that the indemnification provision itself did not violate any statute or case law (as I stated above), the Court determined that the indemnification provision could not be enforced and granted a demurrer by Thomas Builders, stating:

Nonetheless, the Court holds that the grant of demurrer is appropriate in an instance where an indemnification provision in a construction contract can only function to indemnify a party from damages caused by its own negligence. This conclusion accords with the public policy goals behind Virginia’s restrictions against provisions that provide such indemnification.

The Court then went on to explain that in the factual instance here, where the operation of the indemnification provision would necessarily require the possibility of indemnification of DSA for its own negligence, the fact that Thomas Builders may have contributed to the issues through its negligence does not save the claim.  In short, the Roanoke court extended Uniwest beyond the four corners of the contract and examined the fatual scenario before it to determine if the actual result of the indemnification clause would violate public policy.

As always, I highly recommend that you read the case (linked above) for yourself and that any analysis of possible claims or defenses relating to indemnification be don with the assistance of an experienced Virginia construction attorney.

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