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Defend, Indemnify, and Hold Harmless Terms in Construction Contracts: Key Differences, Distinct Obligations

Notable Jurisdictional Interpretations, Drafting Considerations, Interplay With Insurance

A live 90-minute CLE video webinar with interactive Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Tuesday, March 26, 2024

1:00pm-2:30pm EDT, 10:00am-11:30am PDT

Early Registration Discount Deadline, Friday, March 1, 2024

or call 1-800-926-7926

This CLE webinar will discuss key differences between commonly used risk allocation terms in contracts--namely, defend, indemnify, and hold harmless--and how these apply to construction projects. The panel will examine the nuanced meanings of and distinct obligations for each, review current case law and statutory authority demonstrating differing jurisdictional interpretations, and provide best practices for drafting these terms.

Description

Parties to a construction contract rely on indemnification provisions to allocate risk and liability for injuries and other losses during a project. Often these provisions contain the phrase "defend, indemnify, and hold harmless" which are often mistakenly believed to be interchangeable terms and, therefore, included as boilerplate language in project agreements. However, each of these terms has nuanced meanings and distinct obligations and may vary based on jurisdiction. Counsel should understand these variations to best protect their clients during the negotiation and drafting process.

For example, the concept of indemnification imposes an obligation on the indemnitor to pay or reimburse the indemnitee for covered losses when an actual loss or liability has occurred. Whereas the duty to defend arises as soon as a claim is filed against an indemnitee and involves a responsibility to reimburse or advance costs related to a third-party claim, and possibly a right for the indemnitor to assume control of the defense.

The concept of hold harmless may also include duties beyond simple indemnification. Although the majority of states consider "hold harmless" and "indemnify" to be synonymous, a minority of states view "hold harmless" as an obligation to pay both actual losses and potential liabilities while "indemnify" protects against actual losses only.

Listen as our expert panel discusses key differences between these terms commonly used to allocate risk in construction contracts and how they may vary based on jurisdiction. The panel will examine the interplay with insurance and how it may affect the terms. The panel will also provide best practices for drafting and pitfalls to avoid.

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Outline

  1. Introduction: risk allocation in construction contracts
  2. Defend, indemnify, and hold harmless
    1. Nuanced definitions
    2. Distinct obligations
    3. Jurisdictional differences: notable case law and statutes
  3. Interplay with insurance
  4. Best practices for drafting

Benefits

The panel will review these and other important considerations:

  • What are notable jurisdictional differences related to the interpretation of the terms defend, indemnify, and hold harmless and their resulting obligations?
  • What risks arise when using defend, indemnify, and hold harmless as boilerplate language without considering jurisdictional differences?
  • What is the interplay between each of these terms and insurance coverage?
  • What are best practices for drafting risk allocation terms in construction contracts?

Faculty

Bartelemucci, Lawrence
Lawrence J. Bartelemucci

Partner, Chair Construction Practice Group
Meister Seelig & Fein

Mr. Bartelemucci represents developers, owners, contractors, and design professionals with their construction and...  |  Read More

Volack, Richard
Richard R. Volack

Partner, Chair Cybersecurity & Data Privacy Practice
Peckar & Abramson

Mr. Volack counsels some of the country’s largest general contractors, construction managers, and owners in all...  |  Read More

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Early Discount (through 03/01/24)

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Early Discount (through 03/01/24)

You may pre-order a recording to listen at your convenience. Recordings are available 48 hours after the webinar. Strafford will process CLE credit for one person on each recording. All formats include course handouts.

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