The D.C. Court of Appeals, following a long line of precedents, has enforced a contractual indemnification clause which entitled a general contractor to indemnification from its subcontractor, even though the general contractor’s negligence caused the damages.

The trial court had found the contractual indemnification clause ambiguous, and the Court of Appeals reversed. The clause stated as follows:

The Subcontractor shall indemnify and save harmless the Contractor and Owner from any and all claims and liabilities from property damage and personal injury, including death, arising out of or resulting from or in connection with the execution of the work.

The general contractor sought indemnification for $418,000 in damages caused by the general contractor’s negligence in erecting, maintaining and/or inspecting scaffolding. The trial court entered a directed verdict for the subcontractor, reasoning that the clause does not unambiguously provide that the subcontractor will indemnify the general contractor for the general contractor’s own negligence. Supporting the trial court’s conclusion was testimony from the general contractor’s own president that he interpreted the clause as only providing indemnification for the subcontractor’s negligence.

The Court of Appeals, however, reversed on the basis that the indemnification clause at issue was identical to clauses it had previously interpreted as sufficiently comprehensive to include indemnification for damages resulting from the negligence of the indemnitee.

Accordingly, the Court, based on its own precedent, held that the indemnification clause is unambiguous and enforceable. The clause is so broad and sweeping that it covers damages incurred in whole or in part by the negligence of the indemnitee. Because it is unambiguous, the testimony of the general contractor’s president was deemed irrelevant. Extrinsic evidence of the parties’ subjective intent may be resorted to only if the contractual language is ambiguous.

[Ed. Note: in other States, the result reached here might be prevented by statutory prohibitions of indemnification for one’s own sole negligence.]

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