Indemnity provisions are common in most construction contracts as they shift certain risks from one party to another. Anti-indemnity statutes are now also common, and most have a common theme: the person giving the indemnity (Indemnitor) cannot be held responsible for the other party’s (Indemnitee) “sole negligence.” In Michigan, indemnity provisions on public projects in contracts with the owners are limited to comparative fault, that is, the Indemnitor indemnifies the Indemnitee only for the fault of the Indemnitor.
Indiana has recently taken the anti-indemnity concept one step farther. In recent anti-indemnity legislation which took effect July 1, 2019, the Indiana legislature excluded from the definition of “sole negligence” the concepts of vicarious liability, imputed negligence or assumption of a non-delegable duty. This means that a party who is, for example, vicariously liable for professional negligence through an agency relationship may still be required to indemnify an Indemnitee so long as that Indemnitee is not solely negligent. The same is true for non-delegable duties, such as maintaining jobsite safety.
Indiana also added a new section that renders void and unenforceable an indemnity provision where a Design Professional is required by contract to defend either a professional liability claim or a claim for a professional’s willful misconduct or negligence. Design Professionals are no longer required to defend their clients in Indiana for contracts entered into after July 1, 2019. Further, the indemnity is limited to the Design Professional’s willful misconduct or negligence as opposed to the Indemnitee’s negligence.
For further reference, here is the language of the Act: http://iga.in.gov/legislative/2019/bills/senate/230#document-040998a6