Delaware District Court Finds CGL Insurer Owes Condo Builder a Duty to Defend Faulty Workmanship Claims — Based on the Subcontractor Exception to the Your Work Exclusion

Anthony Miscioscia and Laura Rossi | White and Williams

On September 7, 2021, in one of the few decisions addressing the scope of coverage for faulty workmanship under Delaware law, the Delaware District Court denied an insurer’s motion seeking a declaration that it neither needed to defend nor indemnify an insured-builder under a commercial general liability policy.

In this declaratory judgment action, Pennsylvania National Mutual Casualty Insurance Company v. Zonko Builders, the insurer argued that the ongoing underlying action failed to properly plead an “occurrence” in a case alleging damages to a condominium caused by faulty workmanship involving subcontractors.* Zonko Builders (Zonko) served as the general contractor, supervising subcontractors. The Condominium Association sued Zonko for damages allegedly resulting from design and construction deficiencies. The motion was opposed by the Condominium Association, which cross-moved for partial judgment on the pleadings.

In AE-Newark Associates, L.P. v. CNA Insurance Companies2001 Del. Super. LEXIS 370 (Del. Super. Ct. Oct. 2, 2001), the Delaware Superior Court found that an insured was entitled to coverage for damages arising from a faulty roof system installed by a subcontractor on behalf of the insured general contractor.

Although the CGL policy at issue defined an “occurrence” as an accident, the policy also contained an endorsement providing that damages because of property damage to “your work” shall be deemed to be caused by an “occurrence” if the damage was performed on the insured’s behalf by a subcontractor. Nonetheless, the insurer argued that it owed no coverage because faulty workmanship is not an occurrence.

Relying on the 20-year old holding in AE-Newark Associates, as well as a number of out-of-state opinions, the Delaware District court in Zonko noted:“[w]hile we are mindful Delaware Courts have rejected a definition of ‘occurrence’ which includes faulty workmanship, we note no Delaware court analyzed the interplay of subcontractor exceptions and the term ‘occurrence.’” The court went on to explain that “if the Policy does not cover subcontractors’ faulty work, the Policy’s Your Work Exclusion need not specifically except subcontractors’ work. Such an interpretation contravenes Delaware law by rendering the Subcontractor Exception mere surplusage.” Thus, the court found that the Policy’s endorsement provided support to the fact that the definition of “occurrence” included subcontractors’ faulty work.

The court denied the motion as to the insurer’s duty to indemnify and dismissed the Condominium Association’s counterclaims, concluding that the Association lacked standing and the duty to indemnity issue was still unripe.

The Zonko opinion provides insurers with cautionary guidance that, in drafting an exclusion, an insurer may unwittingly provide an insured or court with ammunition to argue/find that the insuring agreement is otherwise broader than the insurer perhaps intended.

The No Corners Rule? New York Federal Court Holds No Duty to Defend Where There Is No Possible Legal or Factual Basis for Indemnification of Insured

Chael Clark | PropertyCasualtyFocus

Under New York law, an insurer’s duty to defend ends if it establishes as a matter of law that there is no possible factual or legal basis on which it might eventually be obligated to indemnify its insured. This rule was recently applied by the Southern District of New York in Philadelphia Indemnity Insurance Co. v. Streb, Inc., No. 19 CIV. 366 (KPF), 2020 WL 5549316 (S.D.N.Y. Sept. 16, 2020).

In Streb, the Philadelphia Indemnity Insurance Company (“PIIC”) issued a commercial general liability policy in February 2018 to Streb, Inc., a not-for-profit performing arts company in Brooklyn, New York, that provides instruction in acrobatics for adults and children. The policy covered certain damages arising from “bodily injury” and required PIIC to defend against any “suit” seeking those damages even if the allegations of the suit are groundless, false, or fraudulent. Coverage under the policy was limited by one relevant exclusion, which excluded coverage for “any claims arising out of the use of any aerial equipment including but not limited to the use of a trapeze or trampoline.”

On April 2, 2018, one of Streb’s students was tragically injured while participating in an acrobatics class at Streb’s facility. Specifically, the student suffered severe injuries to her neck and back while attempting a forward tumble from a small trampoline. The student filed suit against Streb in New York State Supreme Court, Bronx County, on December 12, 2018, alleging in her complaint that she was injured “while attempting to do a forward flip while participating in an acrobatic class” at Streb. The complaint did not specifically mention that the student sustained her injury while using a trampoline, though Streb later learned of this through conversations with others, the relevant injury report, and deposition testimony in the underlying personal injury action.

PIIC issued a disclaimer of coverage to Streb on January 7, 2019, based on its determination that the student’s injury occurred while she was using a trampoline. The following week, PIIC brought an action against Streb in the Southern District of New York seeking a declaratory judgment that it was not obligated to defend or indemnify Streb in the underlying personal injury action. The parties thereafter cross-moved for summary judgment.

The parties agreed that, but for the relevant policy exclusion, PIIC would have had a duty to defend Streb in the underlying personal injury action. That action was clearly a “suit” seeking damages for “bodily injury” within the meaning of the policy. The relevant question, then, was whether the duty to defend existed in light of the exclusion, and whether the court may consider evidence extrinsic to the complaint in making that determination. Streb argued that PIIC owed a duty to defend because the underlying complaint did not expressly state that Streb’s student was injured on a trampoline, and thus the applicability of the exclusion was not clear from the four corners of the complaint.

The court rejected Streb’s argument, recognizing that “insurance policies are, in essence, creatures of contract” – they are subject to principles of contract interpretation, and unambiguous policy provisions must be interpreted in light of their plain and ordinary meaning. Here, the plain language of the policy exclusion was unambiguous. It excluded “any claims arising out of the use of any aerial equipment including but not limited to the use of a trapeze or trampoline.” Because Streb’s student was undisputedly injured while using a trampoline, thus triggering the policy exclusion, PIIC could establish as a matter of law that there was no possible factual or legal basis on which PIIC would be obligated to indemnify Streb. The court held that the use by PIIC of extrinsic evidence to determine whether the insurer had a duty to defend was appropriate, and granted PIIC’s motion for summary judgment.

What Does “Defend, Indemnify and Hold Harmless” Mean?

Nicole E. Roberts, David H. Sweeney and Tyler M. Andrews | Akin Gump Strauss Hauer & Feld

The phase “defend, indemnify, and hold harmless” is found in many, if not most, contracts with liability allocation provisions, across multiple industries. However, many parties do not have a complete understanding of what, exactly, these words mean. The meaning of all three terms varies on a state-by-state basis. Some states require an indemnitor to defend an indemnitee. For example, an Oklahoma statue regarding the interpretation of an indemnity contract states that unless a contrary intention is found in the contract, “[t]he person indemnifying is bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity; but the person indemnified has the right to conduct such defense, if he chooses to do so.” Some states, such as Ohio, view the duties to defend and indemnify as wholly separate. Moreover, states such as Colorado, use “indemnify” and “hold harmless” synonymously. Understanding the meaning of this common phrase in a given state goes a long way toward ensuring that the parties’ risk allocation choices (and, ultimately, their economic deal) are respected, which is important in the best of times, and vital in the worst.

Indemnification

The concept of indemnification imposes an obligation on one party, the indemnitor, to pay or reimburse another party, the indemnitee, for losses covered in the indemnification provision. The obligation to reimburse or pay arises when an actual loss or liability has occurred. Generally, indemnification arises in two ways: implied-in-law or through an express contractual provision. Most states hold that, absent anything to the contrary in contract, a person is entitled to an implied indemnity when the person performing a duty owed by another party, the implied indemnitor, is not at fault and still incurs liability. For example, in Alten v. Ellin & TuckerChartered, the District Court for the District of Delaware noted that without an express contractual indemnification provision, a party may still rely on implied indemnity. The Appellate Division of the Supreme Court of New York, Third Department clarified in Hanley v. Fox that such indemnity exists to allow a party who was forced to pay for another’s wrongdoing to recover. Importantly, the party seeking recovery cannot be at fault.

However, when there is an express indemnification provision in a contract, courts, including the Superior Court of Delaware, New Castle are reluctant to read in an implied indemnity. Instead, under these circumstances courts tend to look at the contract itself and honor the intent of the parties. Generally, if there happens to be any ambiguity surrounding an indemnity, it is typically construed by courts against whomever is seeking indemnification.

Defend

The duty to defend triggers an obligation to act when a claim, which is covered by the indemnification provision in the contract, is brought by a party against the indemnitee. The independent obligation to defend requires the indemnitor to actually defend, finance a defense or reimburse the indemnitee against any claim brought against it, regardless of the merits of the claim or the outcome. The differences between the duty to indemnify and to defend, while nuanced, are critically important. The obligation to indemnify arises once a judgment has been entered, whereas the obligation to defend is triggered as soon as a claim is filed against the indemnitee.

Most states consider the duty to indemnify and to defend to be distinct obligations. However, some states, including California and Oklahoma, consider the duty to defend and the duty to indemnify to be separate, yet statutorily require an indemnitor, if requested, to defend an indemnitee unless the contract states otherwise. A California statue regarding the interpretation of an indemnity contract states that unless a contrary intention is found in the contract, “[t]he person indemnifying is bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity.”

New York presents another variation on the duty to defend, applying separate analysis depending whether the case arises in an insurance context or non-insurance context. For instance, the Appellate Division of the Supreme Court of New York, Second Department in Brasch v Yonkers Constr. Co., specified that since the defendant in that case was not an insurer, its duty to defend was not broader than its duty to indemnify.

Hold Harmless

The inherent meaning of “hold harmless” is subject to interpretation. The prevailing interpretation is that “hold harmless” and “indemnify” are synonymous. However, under the minority view, “hold harmless” requires payment of both actual losses and potential liabilities, while “indemnify” protects against incurred losses only. The main difference in this case is that “hold harmless” may require a party to protect against actual losses as well as potential losses while indemnification protects against actual losses only.

Certain states, including Ohio, Colorado, Louisiana and Delaware, hold that “indemnify” and “hold harmless” are synonymous. Alternatively, California sees the two concepts as distinct as shown in Queen Villas Homeowners Assn v. TCB Prop. Mgmt. There, the court categorized the obligations to indemnify and hold harmless as offensive and defensive rights. Indemnification, according to the court, is “an offensive right—a sword—allowing the indemnitee to seek indemnification.” On the other hand, hold harmless is a defensive measure providing “[t]he right not be bothered by the other party itself seeking indemnification.” Under this view, hold harmless shields one party from being sued for liability that the other party may incur. Courts in Alaska, New Mexico, Oklahoma and West Virginia have not addressed the issue.

Exclusive Remedy Provisions

Exclusive remedy provisions frequently accompany defend, indemnify and hold harmless provisions. An exclusive remedy provision provides that a given remedy (in this case indemnification, defense, and hold harmless) will be the only remedy for any claims arising out of the contract. In this context, much depends on the specific indemnity language chosen. In some states, for instance, failure to include “defend,” together with an exclusive remedies provision, means that there will be no defense obligation. In this respect, certain rights, such as adjustments to a purchase price and payment of contingent consideration, do not lend themselves well to any of the remedies arising out of a defense, indemnification or hold harmless provision and should be excluded. In these cases, the obligee is likely to want the bargained-for consideration, not an indemnification right against their absence. However, without such an exclusion, it is not clear that the party entitled to such a right would be able to easily enforce it.

Concerns in the Current Market

Current market conditions have emphasized the importance of ensuring that risk allocations are understood and respected. Whether the obligations that arise under the contractual terms “defend, indemnify and hold harmless” hold up through bankruptcy and dissolution are growing concerns for market players. It is important to realize that the duty to indemnify may not survive bankruptcy as demonstrated recently in both Texas and Delaware. The U.S. Bankruptcy Court for the Northern District of Texas, in In re Superior Air Parts, Inc., held that contractual indemnity provisions give rise to a dischargeable claim. While the contract survives bankruptcy, the indemnification provision within the contract was dischargeable in bankruptcy. The U.S. Bankruptcy Court for the District of Delaware looked at the issue of indemnification claims in In re Touch America Holdings Inc., and found claims for indemnity were disallowed, consistent with section 502(e) of the Bankruptcy Code. How can parties in a contract protect their indemnification claims? One option is to insure against the claims. Representation and Warranty Insurance, Director and Officer Insurance and contingent liability policies have becoming increasingly common vehicles that can provide a financial backstop for risk allocation choices. Being knowledgeable about how different states view defend, indemnify and hold harmless provisions is crucial in today’s market. A lack of clear understanding about how an indemnification clause will function, be that in bankruptcy or otherwise, can have long lasting, real impact. Remember that when drafting your next agreement.

Indemnify is a Funny Word Carrying Historical Baggage—Be Aware and Use with Care

Glenn West | Weil, Gotshal & Manges

Despite the proliferation of R&W insurance as the sole recourse for buyers with respect to sellers’ breach of representations and warranties, an indemnification remedy against sellers (subject to a cap) continues to find its way into many private company acquisition agreements.  Indemnification, as a concept, originated in the context of one party to a contract agreeing to ensure that the counterparty was held harmless against claims by third parties for which the indemnifying party had agreed to be responsible.  In other words, indemnification was not a concept that ordinarily applied as a means of ensuring that a non-breaching party was compensated by the breaching party for direct losses the non-breaching party sustained by virtue of the breaching party’s breach of contract.  Indeed, absent an exclusive remedy provision, a non-breaching party is entitled to damages under the common law for a breaching party’s failure to abide by the terms of the contract irrespective of whether that contract contains an indemnification clause.  Nevertheless, indemnification provisions in most acquisition agreements today purport to cover losses sustained by a non-breaching party, whether those losses arise directly from the breach or arise as a result of a third party claim.  But the historical fact that indemnification was not normally associated with direct (or first party) claims continues to cause courts some confusion and requires care by deal lawyers to avoid misunderstandings and unintended results.

The dictionary definition of “indemnify” includes both “secur[ing] against hurt, loss, or damages,” as well as “compensat[ing] for incurred hurt, loss, or damage.”  Nonetheless, cases across the country have suggested that there is a presumption that the term “indemnify” only applies to losses arising from third party claims, not losses incurred directly by a party as a result of a counterparty’s default under a contract.[1] While most of these cases do not involve the indemnification provisions contained in private company acquisition agreements, and are focused on whether the indemnification provision allows recovery for attorneys’ fees related to direct claims between the parties,[2] it is not clear that they can be completely discounted on that basis. 

To overcome the general presumption that an indemnification provision only covers third party claims, it is important to state in clear and unequivocal terms that the indemnification provision applies to both direct and third party claims.  Language that simply provides that the breaching party shall indemnify the non-breaching party for losses sustained by the non-breaching party, as a result of the breaching party’s breach of representations, warranties or covenants set forth in the agreement, may be deemed insufficient to clearly cover first party (or direct) claims, as opposed to be presumed to only apply to third party claims.  While we have addressed this issue before in a series of posts to Weil’s Global Private Equity blog,[3] some recent Delaware cases have suggested that a reminder of these principles may be in order.

For example, in a recent Delaware Superior Court decision, Sarn Energy LLC v. Tatra Defence Vehicle A.S., C.A. No.: N17C-06-355 EMD CCLD, 2019 WL 6525256 (Del. Super. October 31, 2019),  a party’s claims for attorney’s fees and costs incurred in pursuing its claim for damages against the breaching party were denied despite the existence of the following indemnification clause in Section 11 of the Agreement:

11. Indemnification. Parties shall defend, indemnify and hold harmless each other and its officers, directors, employees, agents, parent, subsidiaries and other affiliates, from and against any and all damages, costs, liability, and expense whatsoever (including attorneys’ fees and related disbursements) incurred by reason of (a) any failure by Parties to perform any covenant or agreement of the Parties set forth herein; (b) injury to or death of any person or any damage to or loss of property which is due to the negligence and/or willful acts of the Parties; or (c) any breach by Parties of any representation, warranty, covenant or agreement under this Agreement. (emphasis added)

Notwithstanding Section 11’s seeming breadth, the court held that: “Section 11 is a standard indemnity provision that applies to third party actions not to first party claims like the one asserted here by [plaintiff].” And, as such, it did not otherwise qualify as a valid fee shifting clause that overrode the American Rule which “provides that litigants generally are responsible for their own litigation costs.”

Similarly, in a granted motion for re-argument in Winshall v. Viacom International, Inc., C.A. No.: N15C-06-137 EMD CCLD, 2019 WL 5787989 (Del. Super. November 6, 2019), the court held that the following indemnification clause in Section 8.6 of the Merger Agreement only applied to third party claims, not to first party claims:

a) Indemnification. Subject to the limitations set forth in this Article VIII, from and after the Effective Time, each of Parent [Viacom] and MergerCo, jointly and severally, shall indemnify, defend and hold harmless each Merger Consideration Recipient [Mr. Winshall and the other Harmonix Shareholders] against any and all Losses actually incurred or suffered by any such Merger Consideration Recipient as a result of:
(i) the breach of any representation or warranty of Parent or MergerCo set forth in this Agreement or in any Ancillary Document; and
(ii) the breach of any covenant or agreement of Parent or MergerCo contained in this Agreement or in any Ancillary Document.

Losses were defined in the Merger Agreement as follows:

any and all losses, liabilities, damages, claims, awards, judgments, diminution in value, Taxes, fees, costs and expenses (including reasonable attorneys’ fees and expenses, expenses of investigation, defense, prosecution and settlement of claims (including any claims under Article VIII hereof), court costs or enforcement of the provisions of this Agreement) suffered or incurred by such Person, plus any interest that may accrue on the foregoing.

According to the court, the absence of explicit language covering the reimbursement of attorneys’ fees for directly enforcing the breaching party’s obligations (i.e., first party claims), which were the only claims asserted, meant that the indemnification clause was limited to third party claims.  Hmmmm.

But, in Collab9. LLC v. En Pointe Technologies Sales, LLC, C.A. NO. N16C-12-032 MMJ CCLD, C.A. NO. N19C-02-141 MMJ CCLD, 2019 WL 4454412 (Del. Super. September 17, 2019), the court was able to conclude that the indemnification provision covered both direct and third party claims (this case did not, however, involve a dispute over the recovery of attorney’s fees).  After noting that typically “indemnification [only] comes into play when one party to a contract agrees to indemnify a second party to the contract for liability resulting from third-party claims against the second party,” the court note that the Asset Purchase Agreement “states that Seller indemnification may apply ‘whether or not involving a third party claim’ resulting from ‘any breach or inaccuracy of a representation or warranty….’” The court further noted additional language that made clear that indemnification was available for both direct and third party claims. 

The good news is that most private company acquisition agreements cover this issue explicitly and make clear that despite the historical limitations placed on the word “indemnify,” both direct and third party claims are intended to be covered by the indemnification regime.  Moreover, the indemnification provisions in many private company acquisition agreements use terms more expansive than simply “indemnify, defend and hold harmless,”[4] which are terms more traditionally related to third party claims.  But many ancillary agreements do not explicitly cover this issue or use the more expansive terms. 

Perhaps we would all do well to heed this observation from a 2012 Delaware Superior Court case attempting to decipher an indemnification provision: 

When the Court considers the indemnity clause here, even if the Court was kind in its description, it would have to guess that it was written by counsel who never litigate, whose days are filled with the excitement of writing contract terms that only they will understand or can reasonably interpret, and who obviously have lost the ability to write in a clear and common-sense manner. While this may be a well-respected and sought-after art form, it does not help the client insure their expectations and demands are understood by all parties. Instead, the Court is left with the challenge of deciphering terms that were perhaps in vogue in the nineteenth century but whose days have clearly passed.[5]

Remember, the word “indemnify” carries historical baggage; be aware and use care. 

Endnotes    (↵ returns to text)

  1. See e.g., TranSched Sys. Ltd. v. Versyss Transit Sols., LLC, 2012 WL 1415466, at *1-*2 (Del. Super. Mar. 29, 2012); Hopper Assoc., Ltd. v. AGS Computers, Inc., 548 N.E.2d 903, 905 (N.Y. 1989); Hot Rods, LLC v. Northrup Grumman Sys. Corp., 272 Cal. App.4th 1166, 1179 (2015); Claybar v. Samson Exploration, LLC, NO. 09–16–00435–CV, 2018 WL 651258, at *3 (Tex. App.—Beaumont Feb. 1, 2018); see also Kenneth A. Adams, A Manual of Style for Contract Drafting §13.416 (4th Ed. 2017).
  2. See Richard L. Levine, Peter Feist and Jessica N. Djilani, Clarifying the “Unmistakable Clarity” Standard in Contractual Indemnification Provisions,  85 U.S.L.W. 1391 (April 13, 2017), reproduced here.  The fact that many of these cases concern the recovery of attorneys’ fees is relevant because of the strong presumption imposed by the “American Rule,” which states that in the absence of a “specific and explicit” provision in a contract or statute requiring a party to pay the attorneys’ fees of the other party, each party is responsible for their own attorneys’ fees.  Indeed, the American Rule’s presumption is so strong that the United States Supreme Court recently held (unanimously) that a statute requiring one party to pay “all expenses of the proceedings” was not sufficiently clear and explicit to rebut the American Rule’s presumption that each party was required to pay their own attorney’s fees.  Peter v. Nantkwest, Inc., No. 18-801, 589 U.S. __ (Dec. 11, 2019, Sotomayor, J.).  Thus, it may be that it is the American Rule’s presumption that is sometimes at work more than the presumption that the word “indemnify” ordinarily only applies to third party claims.
  3. Peter Feist & Jessica N. Djilani, Indemnification Provisions: Are Attorneys’ Fees (And Other Expenses) Incurred In Claims Between Contracting Parties Covered? – Part 1, Weil’s Global Private Equity Watch, June 9, 2016, available here; Peter Feist & Jessica N. Djilani, Indemnification Provisions: Are Attorneys’ Fees (And Other Expenses) Incurred In Claims Between Contracting Parties Covered? – Part 2, Weil’s Global Private Equity Watch, June 14, 2016, available here; Peter Feist & Jessica N. Djilani, Indemnification Provisions: Are Attorneys’ Fees (And Other Expenses) Incurred In Claims Between Contracting Parties Covered? – Part 3, Weil’s Global Private Equity Watch, June 23, 2016, available here; Peter Feist & Jessica N. Djilani, Indemnification Provisions: Are Attorneys’ Fees (And Other Expenses) Incurred In Claims Between Contracting Parties Covered? – Part 4, Weil’s Global Private Equity Watch, July 7, 2016, available here.
  4. Such terms may include “pay, compensate, and reimburse for,” in addition to “defend, indemnify, and hold harmless from and against.”
  5. TranSched Sys. Ltd. v. Versyss Transit Sols., LLC, 2012 WL 1415466, at *3 (Del. Super. Mar. 29, 2012).  I suspect contract drafting guru, Ken Adams, would agree with those sentiments.  See  Kenneth A. Adams, A Manual of Style for Contract Drafting, “Introduction,”  xxxvi-xxxvii (4th Ed. 2017).

“Slow and Steady Doesn’t Always Win the Race” – Applicability of a Statute of Repose on Indemnity/Contribution Claims in New Hampshire

Rahul Gogineni | White and Williams | September 3, 2019

In Rankin v. South Street Downtown Holdings, Inc.2019 N.H. LEXIS 165, the Supreme Court of New Hampshire considered, pursuant to a question transferred by the trial court, whether RSA 508:4-b, the statute of repose for improvements to real property, applies to indemnity and contribution claims. The court concluded that based upon the plain reading of the statute, it applies to indemnity and contribution claims. As noted by the court, a holding to the contrary would violate the intent of a statute of repose, which is to establish a time limit for when a party is exposed to liability.

In Rankin, after falling and injuring himself while leaving a building, John Rankin and his wife brought an action against the property owner, South Street Downtown Holding, Inc. (South Street) in 2017. South Street subsequently filed a third-party complaint against multiple parties including an architectural company, Wagner Hodgson, Inc. (Wagner), who was involved in a renovation project at the property. The project was substantially complete in 2009. Wagner responded by moving to dismiss the action, arguing that South Street’s indemnification and contribution claims were barred by the applicable statute of repose.

RSA 508:4-b specifically states,

Except as otherwise provided in this section, all actions to recover damages for injury to property, injury to the person, wrongful death or economic loss arising out of any deficiency in the creation of an improvement to real property, including without limitation the design, labor, materials, engineering, planning, surveying, construction, observation, supervision or inspection of that improvement, shall be brought within 8 years from the date of substantial completion of the improvement, and not thereafter. (Emphasis added).

After reviewing the basis of South Street’s claims against Wagner, the court concluded that South Street’s indemnification and contribution claims specifically fell within the statute of repose. In so doing, the court reaffirmed its prior holdings that indemnity and contribution actions are actions to recover economic loss. It then concluded that because there was no exception in the section for indemnity and contribution actions, they both fell squarely within the meaning of the phrase “all actions.” Having found that the statute of repose was applicable to South Street’s claims, the court answered the transferred question in the affirmative.

This case serves as a good reminder that contribution and/or indemnification claims may be governed not only by a different subset of laws within respective jurisdictions but also by the terms of any applicable time limitation statutes. As such, practitioners should be aware that merely because an indemnity or contribution statute does not discuss either a statute of limitation or a statute of repose, such limitations may still apply to their claims. Moreover, just because a statute of limitations and/or repose does not specifically mention indemnity or contribution claims, does not mean they are exempt from the statute.