Sub Not Required to Indemnify Architect
Kegler Brown Construction Newsletter February 1, 2000
Owners often require Contractors to indemnify them and their agents, including Architects, from loss. In turn, Contractors "pass down" these indemnity obligations upon their Subcontractors.
In a recent case, the Owner's Architect sought indemnification, and reimbursement of its legal fees, from the Roofing Subcontractor after the Owner sued the Architect with respect to a leaky roof. Crownshield v. Campeon Roofing (1998), 129 Ohio App. 3d 819. The Roofing Subcontractor had signed a contract containing an indemnity clause which required the Sub to indemnify the Architect for claims arising out of "performance of the work" if the loss arose from bodily injury or property damage (other than the work itself).
The subcontract specifically incorporated the prime contract, including the AIA General Conditions.
The Court of Appeals agreed with the Sub's argument that the claim for attorney's fees related to the alleged faulty construction of the roof, rather than for property damage "other than to the work itself" and denied the Architect's claim.
This case points out the important difference between limited and broad form indemnity clauses. A limited indemnity clause like this one only requires the Subcontractor or Contractor, as the case may be, to indemnify from personal injury or property damage risks (like a jobsite accident) and are generally insurable under standard policies. In contrast, a broad form indemnity might require the Contractor or Subcontractor to indemnify parties from any and all risk associated with their work (like defective work) and may not typically be covered under standard insurance policies. Obviously a more limited form of indemnity, like that found in the standard AIA documents, is more beneficial to the party (typically a Contractor or Sub) being required to indemnify others.
Contractors and Subcontractors are also cautioned to see that their specific contract indemnity clauses are forwarded to their insurance consultants to make sure that all of the risk in that particular clause is adequately insured when certificates of insurance are issued.