These materials were produced by The Rose Group, S.C. for informational purposes only and should not be construed as legal advice concerning indemnification clauses or otherwise. This information may become outdated or superseded as time goes by, and it is important to research the current laws in your jurisdiction. Use of, and access to, these materials does not create an attorney-client relationship between the reader or user and The Rose Group, S.C.

wdt_ID State Cover Own Negligence? Legislative Limits / Exceptions "Hold Harmless" Synonymous With Indemnification? Direct vs. 3rd Party Claims
1 Alabama Agreements by which one party agrees to indemnify another for the consequences of the other’s acts or omissions are carefully scrutinized. Therefore, an agreement by one person to indemnify another for their own negligence is enforceable only if the indemnity provisions are unambiguous and unequivocal

– Montgomery v. JYD International, Inc., 534 So. 2d 592, 594 (Ala. 1988).
No Statute Unaddressed by courts Unaddressed by courts
3 Alaska With regard to an indemnification agreement which purports to indemnify a party for its own negligence, the interpretation of such clause varies depending upon the nature of the contract. For example, when interpreting an indemnity provision in a commercial contract, courts apply the “reasonable construction rule” rather than the general rule that indemnity clauses for one’s own negligence should be strictly construed.

– see Manson-Osberg Co. v. State, 552 P.2d 654, 659 (Alaska 1976); Stephan & sons v. Municipality of Anchorage, 629 P.2d 71, 74 (Alaska 1981).
ALASKA STAT. § 45.45.900 Unaddressed by courts Unaddressed by courts
4 Arizona An indemnity contract is strictly construed and does not protect against one’s own negligence unless expressed in clear and unequivocal terms. Where an indemnity provision is silent regarding the indemnitee’s negligence, the indemnitee is entitled to indemnification for loss resulting from passive negligence but not active negligence.

– see Washington Elementary School Dist. No. 6 v. Baglino Corp., 817 P.2d 3, 6 (Ariz. 1991).
ARIZ. REV. STAT. ANN. §§ 32-1159, 34-226, 41-2586 “Agreements to indemnify or hold harmless are essentially the same . . . .”

– see 1800 Ocotillo, LLC v. WLB Grp., Inc., 219 Ariz. 200, 203, 196 P.3d 222, 225 (2008).
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5 Arkansas Agreements to indemnify an indemnitee against its own negligence are generally disfavored, closely scrutinized, strictly construed, and will not be upheld unless expressed clearly and unequivocally.

– see Potlatch Corp. v. Missouri Pac. R.R., 321 Ark. 314, 321, 902 S.W.2d 217, 222 (Ark. 1995); Arkansas Kraft Corp. v. Boyed Sanders Constr. Co., 298 Ark. 36, 39, 764 S.W.2d 452, 453 (Ark. 1989).
ARK. CODE ANN. §§ 4-56-104, 22-9-214 Unaddressed by courts For direct claims to be covered, the intent to do so must be clearly and unequivocally expressed in the indemnification agreement.

“While the contract does not contain the specific words ‘directly or indirectly on account of injuries to persons arising or resulting from the work performed or provided, including liabilities imposed by separate indemnity agreements’ or like expressions, appellee asks us to find this equivalent clear intent from the broad language of the instrument. . . . Although this meaning might be considered a possibility it is not spelled out specifically in the contract and must be read into it.”

– see Weaver-Bailey Contractors, Inc. v. Fiske-Carter Constr. Co., 9 Ark. App. 192, 196, 657 S.W.2d 209, 211 (Ark. Ct. App. 1983).
6 California Generally (but not always), California courts agree to provide indemnity for own negligence if the parties use sufficiently specific and explicit language that is strictly construed against the indemnitee.

– see E. L. White, Inc. v. City of Huntington Beach, 21 Cal. 3d 497, 507, 579 P.2d 505, 511 (1978).
CAL. CIV. CODE § 2782 California courts have held that indemnify and hold harmless confer distinct rights: (1) “Indemnify” is an offensive right, allowing the indemnified party to seek indemnification from the indemnifying party; (2) “Hold harmless” is a defensive right, protecting the indemnified party from being bothered by the other party seeking indemnification against it.

– see Queen Villas Homeowners Assn v. TCB Prop. Mgmt., 149 Cal. App. 4th 1, 9, 56 Ca. Rptr. 3d 528, 533 (2007).
Indemnification agreements ordinarily relate to third party claims. But this general rule does not apply if the parties to a contract use the term “indemnity” to include direct liability as well as third party liability. An indemnity agreement is to be interpreted according to the language and contents of the contract as well as the intention of the parties as indicated by the contract.

– see Dream Theater, Inc. v. Dream Theater, 124 Cal. App. 4th 547, 555 21 Cal. Rptr. 3d 322, 328 (2004), as modified on denial of reh’g (Dec. 28, 2004).
7 Colorado An agreement purporting to indemnify a party against liability for its own negligence will be enforced as written as long as it contains a clear and unequivocal expression that the parties intended that result.

– Constable v. Northglenn, LLC, 248 P.3d 714, 716 (Colo. 2011).
COLO. REV. STAT. §§ 13-50.5-102, 13-21-111.5 Colorado courts have used the terms interchangeably, but still be cautious in your decision to include or exclude particular terms.

– see, e.g., Constable v. Northglenn, LLC, 248 P.3d 714, 716 (Colo. 2011) (“An agreement to indemnify another is an agreement by one party to hold another harmless from such loss or damage as may be specified in their contract.”).
“As we have acknowledged in prior holdings, this kind of ‘any and all’ language obviously encompasses injuries resulting from Northglenn's own negligence.

Unlike those cases in which the intent of the parties is articulated no more expressly than this, however, it is not necessary here to derive an intent to indemnify against injuries for which Northglenn was itself responsible from this broad language alone. The agreement's additional express exclusion of Northglenn's ‘own gross negligence or intentional torts’ from Constable's indemnity obligation is an even clearer indication that in using broad language of liabilities generally the parties contemplated liability resulting from the fault of Northglenn, as well as anyone else.”

– Constable v. Northglenn, LLC, 248 P.3d 714, 717 (Colo. 2011) (emphasis added) (citations omitted).

Note: The language in the case appears broad enough to suggest that if the intention of the parties is clear, then an indemnification provision can protect against any claim which would include third party claims, claims of negligence, or direct claims.
8 Connecticut An indemnification clause that purports to cover the indemnitee’s own negligence will be enforced if the intention of the parties to do so is expressed in clear and unequivocal language. The language “indemnify . . . against all liabilities” is broad enough to indemnify for one’s own negligence because the word “‘all’ leaves no room for exceptions.”

– see Burkle v. Car and Truck Leasing Co., Inc., 1 Conn. App. 54, 56–57, 467 A.2d 1255, 1256–57 (1983).
CONN. GEN. STAT. § 52-572k Connecticut courts generally interpret “hold harmless” to be synonymous with indemnification.

– see Vibert v. Bd. Of Educ., 260 Conn. 167, 173 (Conn. 2002); Brentnal v. Holmes, 1 Root 291, 292 (Conn. Super. Ct. 1791).
“[A]n action for indemnification is one in which one party seeks reimbursement from another party for losses incurred in connection with the first party’s liability to a third party.”

– Amoco Oil Co. v. Liberty Auto and Electric Co., 262 Conn. 142, 148, 810 A.2d 259 (2002). But see Helming & Co., P.C. v. RTR Techs., Inc., 76 Supp. 3d 363 (D. Mass. 2015) (rejecting arguments based off Amoco’s third-party/first party distinction).
9 Delaware Indemnification for one’s own negligence is allowed, but the contract “must clearly and unequivocally spell out the intent to grant such immunity.”

– see Blum v. Kauffman, 297 A.2d 48, 49 (Del. 1972).
DEL. CODE ANN. tit. 6, § 2704 Delaware courts generally interpret “hold harmless” to be synonymous with “indemnification.”

– see Majkowski v. American Imaging Management Services, LLC, 913 A.2d 572, 589–590 (Del. Ch. 2006).
Each provision is unique and should be decided under all of the particular facts and circumstances of that case.

– see TranSched Sys. Ltd. v. Versyss Transit Sols., LLC, No. CIV.A. 07C-08-286 WCC, 2012 WL 1415466, at *2 (Del. Super. Ct. Mar. 29, 2012).
10 District of Columbia Indemnitee provision “should not be construed to permit indemnitee to recover for his own negligence unless . . . such interpretation reflects the intention of the parties . . . with clarity from the face of the contract.” Broad language is said to include such an intent because if the parties intended otherwise, they would have included a limitation.

– see N.P.P Contractors, Inc. v. John Canning & Co., 715 A.2d 139, 141–42 (D.C. 1998).
No Statute Unaddressed by courts The standard indemnification clause covers claims by third parties, but whether or not it extends to attorney’s fees in first-party actions is a matter of contract interpretation.

– see James G. Davis Constr. Corp. v. HRGM Corp., 147 A.3d 332, 340 (D.C. 2016).
11 Florida An indemnification clause that applies to a party’s own wrongful conduct is not enforceable unless it unequivocally expresses that the party’s own negligence is covered by the agreement.

– Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 487, 489 (Fla. 1979).
FLA. STAT. § 725.06 Indemnity agreements and exculpatory clauses have been held to mean different things. Indemnity agreements allocate risk of liability to third parties, and exculpatory clauses primarily release a party from liability from its own negligence.

– see Sanislo v. Give Kids the World, Inc., 157 So.3d 256, 265 (Fla. 2015).

There is a difference between contracts of indemnification and hold-harmless agreements. “Exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing his injury. An indemnification clause attempts to shift the responsibility for the payment of damages to someone other than the negligent party . . . .”

Kitchens of Oceans v. McGladrey & Pullen, 832 So.2d 270, 272 (Fla. App. 4 Dist. 2002).

Note: This is important to note because it could lead to those terms having a different interpretation within an indemnification agreement.
“Generally in Florida, indemnity provisions apply only to third-party claims. . . . Contracts for direct indemnity will not be inferred; for indemnity to apply against first-party claims, the indemnification provision must clearly indicate that it applies to the acts of the other party to the contract. An indemnification provision that is silent or unclear whether it applies to first-party claims will normally be interpreted to apply only to third-party claims.”

– MVW Mgmt., LLC v. Regalia Beach Developers LLC, 230 So. 3d 108, 112 (Fla. Ct. App 2017).
12 Georgia “Georgia courts never imply an agreement to indemnify another for one’s own negligence in the absence of express language.”

– see Myers v. Texaco Refining & Marketing, Inc., 205 Ga. App. 292, 295, 422 S.E.2d 216, 219 (1992) (quoting Allstate Ins. Co. v. City of Atlanta, 202 Ga. App. 692, 693, 415 S.E. 308, 310 (1992).
GA. CODE ANN. § 13-8-2 Unaddressed by courts Indemnification provisions traditionally only cover third-party claims unless the language clearly reflects the intent to cover direct claims.

– see Holmes v. Clear Channel outdoor, Inc., 284 Ga. App. 474, 477, 644 S.E.2d 311, 314 (2007).
13 Hawaii Indemnity contracts are strictly construed, especially when the indemnitee claims indemnification from its own negligence. There must be a “clear and unequivocal assumption of liability” for the indemnitee’s negligence.

– see Kamali v. Hawaiian Elec. Co., Inc., 54 Haw. 153, 161–62, 504 P.2d 861, 866 (1972).
HAW. REV. STAT. § 431:10-222 Unaddressed by courts Unaddressed by courts
14 Idaho Unaddressed by courts IDAHO CODE ANN. § 29-114 Idaho courts have cited the definition from Black’s law Dictionary which interprets “hold harmless” to be synonymous with “indemnification.”

– see Morrison v. Nw. Nazarene Univ., 152 Idaho 660, 668, 273 P.3d 1253, 1261 n.4 (2012).
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15 Illinois Broad indemnification is permissible but strictly construed. The language to indemnify the indemnitee for his own negligence must not be too broad and requires clear and explicit language or the intention of the parties be expressed in unequivocal terms.

– see Bates v. Select Lake City Theater Operating Co., Inc., 78 Ill. App. 3d 153, 155, 397 N.E.2d 75, 77–78 (1979).
740 ILL. COMP. STAT. ANN. 35/1–3 Unaddressed by courts Applies to both unless you expressly limit the scope to third-party claims. The phrase “against any and all loss” was broad enough to cover first party losses on its face.

– see Water Tower Realty Co. v. Fordham 25 E. Superior, L.L.C., 404 Ill. App. 3d 658, 666, 936 N.E.2d 1127, 1133–34 (2010).
16 Indiana Broad indemnification is permissible but strictly construed. The contract must expressly state in clear and unequivocal terms that the indemnitor intended to indemnify the indemnitee for its own negligence.

– see Indianapolis City Mkt. Corp. v. MAV, Inc., 915 N.E.2d 1013, 1024 (Ind. Ct. App. 2009).
IND. CODE § 26-2-5-1 Indiana courts generally interpret “hold harmless” to be synonymous with “indemnification.”

– see Henthorne v. legacy Healthcare, Inc., 764 N.E.2d 751, 756 (Ind. Ct. App. 1989).
Direct claims are generally not presumed to be included unless the relationship of the parties implicitly provides for direct party indemnification.

– see L.H. Controls, Inc. v. Custom Conveyor, Inc., 974 N.E.2d 1031, 1047 (Ind. Ct. App. 2012).
17 Iowa Court will not enforce an indemnification provision that indemnifies an indemnitee for its own negligence “unless the intention of the parties is clearly and unambiguously expressed.” Courts first look for specific language in the contract that address the fault or negligence of the indemnitee. However, if the intent to indemnify for negligence of the indemnitee is clear, the terms used does not matter.

– see McNally & Nimergood v. Neumann-Kiewit Constructors, Inc., 648 N.W.2d 564, 571 (Iowa 2002); Herter v. Ringland-Johnson-Crowley Co., 492 N.W.2d 672, 674 (Iowa 1992).
IOWA CODE ANN. §§ 455G.13(8), 537A.5 Iowa courts generally interpret “hold harmless” to be synonymous with “indemnification.”

– see In re Marriage of Ginsberg, 750 N.W.2d 520, 522 (Iowa 2008); Estate of Pearson v. Interstate Power & Light Co., 700 N.W.2d 333, 344 (Iowa 2005).
“In Iowa, we have held an indemnification clause that uses the terms ‘indemnify’ and ‘hold harmless’ indicates an intent by the parties to protect a party from claims made by third parties rather than those brought by a party to the contract.”

– NevadaCare, Inc. v. Dep’t of Human Servs., 783 N.W.2d 459, 471 (Iowa 2010) (citing Estate of Pearson v. Interstate Power & Light Co., 700 N.W.2d 333, 344–45 (Iowa 2005)).
18 Kansas Indemnification for an indemnitee’s own negligence is only enforced when there is no “vast disparity in the bargaining power between the parties and the intention to do so is expressed in clear and unequivocal language.”

– see Belger Cartage Service, Inc. v. Holland Const. Co., 224 Kan. 320, 329, 582 P.2d 1111, 1119 (1978) (quoting Kansas City Power & L. Co. v. United Tel. Co. of Kan., Inc., 458 F.2d 177, 179 (10th Cir. 1972)).
KAN. STAT. ANN. § 16-121 Court held that a hold harmless provision in a separation agreement is the same as an indemnity agreement. Then it cited cases that said the two words are synonymous.

– see Loscher v. Hudson, 39 Kan. App. 2d 417, 426, 182 P.3d 25, 33 (2008).
The terms “indemnify and hold harmless [from] … any and all claims” are sufficiently broad enough to cover direct claims and will do so unless limited only to third-party claims.

– see GFSI Canada Co. v. Fletcher Leisure Grp., Inc., 277 P.3d 447 (Kan. Ct. App. 2012) (unpublished table decision).
19 Kentucky Broad language in indemnification provisions that clearly intend to indemnify the indemnitee’s own negligence will be enforced.

– see Fosson v. Ashland Oil & Refining Co., 309 S.W.2d 176, 178 (Ky. 1957).
KY. REV. STAT. ANN. § 371.180 Unaddressed by courts The language “release of all claims” was held to indemnify for any direct or third-party claims.

– see Zetter v. Griffith Aviation, Inc., 435 F. Supp. 2d 622, 631 (E.D. Ky. 2006).

Note: Federal case so it is only persuasive authority.
20 Louisiana “An indemnity contract indemnifying an indemnitee against his own negligence is to be strictly construed; such a contract will not be construed to indemnify an indemnitee against losses resulting from his own negligence unless such an intent is expressed in unequivocal terms.”

– see McGill v. Cochran-Sysco Foods, 35,898 (La. App. 2 Cir. 5/8/02), 818 So. 2d 301, 306.
LA. STAT. ANN. §§ 9:2780, 38:2216(G) Louisiana District courts have cited to Black’s Law Dictionary that provides “hold harmless” and “indemnification” are synonymous.

– see Kevin Gros Marine, Inc. v. Quality Diesel Serv., Inc., No. CIV.A. 11-2340, 2012 WL 1946132, at *5 n.3 (E.D. La. May 30, 2012).

Note: Federal case so it is only persuasive authority.
Applies to both direct and third party claims unless the parties include language limiting it to only third-party claims.

– see Cox Communications v. Tommy Bowman Roofing, LLC, 2004-1666 (La. App. 4 Cir. 3/15/06), 929 So.2d 161, 165.
21 Maine Indemnification provisions that indemnify the indemnitee for its own negligence are enforceable if the intent to do so is expressed clearly and explicitly in the contract. Broad terms are not sufficient.

– see Emery Waterhouse Co. v. Lea, 467 A.2d 986, 993 (Me. 1983).
No Statute Unaddressed by courts Unaddressed by courts
22 Maryland “The general rule is that contracts will not be construed to indemnify a person against his own negligence unless an intention so to do is expressed in those very words or in other unequivocal terms.”

– see Crockett v. Crothers, 264 Md. 222, 227, 285 A.2d 612, 615 (1972).
MD. CODE ANN., Cts. & Jud. Proc. § 5-401 Unaddressed by courts Whether first-party claims are covered is based on the application of contract interpretation to determine the scope of the indemnification provision and whether the clause covers first party enforcement rights.

– see Bainbridge St. Elmo Bethesda Apartments, LLC v. White Flint Express Realty Grp. Ltd. P’ship, LLLP, 454 Md. 475, 492, 164 A.3d 978, 987–988 (2017).

“[N]eed to apply contract interpretation to determine the scope of the indemnification provision and whether the clause covers first party enforcement rights. The scope of indemnification is a matter of contract interpretation, and as such may or may not include attorneys' fees in first party enforcement actions, in addition to the standard allowance of attorney's fees in defense of suits by third parties.”

– Nova Research, Inc. v. Penske Truck Leasing Co., 405 Md. 435, 449, 952 A.2d 275, 283–84 (2008).
23 Massachusetts Massachusetts does not require express and unambiguous language. Instead “something less than an express reference in the contract to losses from the indemnitee’s negligence as indemnifiable will suffice to make them so if the intent otherwise sufficiently appears from language and circumstances.”

– see Shea v. Bay State Gas Co., 383 Mass. 218, 222, 418 N.E.2d 597, 600 (1981) (citing Stern v. Larocca, 49 N.J. Super. 496, 503–04 (1958)).
MASS. GEN. LAWS ch. 149, § 29C Unaddressed by courts “Massachusetts law also has not adopted a special rule that requires that indemnity contracts be read as only applying to third parties unless there is explicit language to the contrary. . . . The district court here implicitly and correctly ruled that the language of the Contract did not preclude indemnity arising from non-third-party suits . . . The language of section 19.1 of the Contract is broad enough to encompass indemnity arising from suits between the indemnitor and indemnitee.”

– Caldwell Tanks, Inc. v. Haley & Ward, Inc., 471 F.3d 210, 216 (1st Cir. 2006) (interpreting Massachusetts state law) (citations omitted).

“Indemnity contracts are not necessarily limited to third-party claims.” Instead, Massachusetts courts interpret each indemnity contract on its own terms and look at the particular language and the background of the parties’ intentions.

– see Kusiak v. Doherty, 79 Mass. App. Ct. 1102, 942 N.E.2d 1017 (2011).
24 Michigan Indemnification provisions that attempt to indemnify the indemnitee for its own negligence are strictly construed and will only be enforced if the language “clearly evidences that such was the intended effect.”

– see Skinner v. D-M-E- Corp., 124 Mich. App. 580, 585, 335 N.W.2d 90, 92 (1983).
MICH. COMP. LAWS § 691.991 Unaddressed by courts Use of the term “all” in indemnity provisions “has been interpreted to provide for the broadest possible indemnification.”

– see Triple E Produce Corp. v. Mastronardi Produce, Ltd., 209 Mich. App. 165, 173, 530 N.W.2d 772, 776 (1995).

Note: If “all” has been interpreted as broadly as possible, one could infer that would include both direct and third-party claims. Still a better practice to include both, however, if that is your intent.
25 Minnesota “Agreements seeking to indemnify a party for losses resulting from that party’s own negligent acts are not favored in the law and are not construed in favor of indemnification, unless such intention is expresses in clear and unequivocal terms. However, a specific reference to ‘negligence’ is not required if the provision as a whole state the indemnitor’s intent to be liable for the indemnitee’s negligence.”

– see Oster v. Medtronic, Inc., 428 N.W.2d 116, 118 (Minn. Ct. App. 1988) (citations omitted).
MINN. STAT. § 337.02 Minnesota court defined a hold harmless agreement as an agreement to indemnify another party.

– see Cannon Cochran Mgmt. Servs., Inc. v. Duncan, No. A08-0807, 2009 WL 982262, at *6 (Minn. Ct. App. Apr. 14, 2009).
The language “any claim” was held to be inclusive and expansive and includes first-party claims.

– see Work Connection v. Hustad Steel Co., No. C9-94-2338, 1995 WL 118914, at *1 (Minn. Ct. App. Mar. 21, 1995).
26 Mississippi Mississippi does not require express language as long as it can be gathered that the parties intended through clear and unequivocal language such indemnification. Broad language that covered “all such claims for damages and from all expenses” and “any action arising out of this subcontract” were sufficient to indemnify the indemnitee against his own negligence.

– see Blain v. Sam Finley, Inc., 226 So. 2d 742, 746 (Miss. 1969).
MISS. CODE ANN. § 31-5-41 Unaddressed by courts Unaddressed by courts
27 Missouri Indemnification provision is not construed to indemnify one against their own negligence unless such “intention is expressed in clear and unequivocal terms.”

– see Nusbaum v. City of Kansas City, 100 S.W.3d 101, 105 (Mo. 2003).
MO. REV. STAT. § 434.100 Missouri courts have cited to Black’s Law Dictionary which uses the terms “indemnity clause,” hold-harmless clause,” and “save-harmless clause” interchangeably.

– see Caballero v. Stafford, 202 S.W.3d 683, 693–94 (Mo. Ct. App. 2006).
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28 Montana Agreements should be liberally construed in favor of the party intended to be indemnified.

– see Lesofski v. Ravalli Cty. Elec. Co-op., Inc., 151 Mont. 104, 107, 439 P.2d 370, 371 (1968).

Indemnification of indemnitee’s negligence is enforceable if “expressed in clear and unequivocal terms.”

– see Amazi v. Atlantic Richfield Co., 249 Mont. 355, 359, 816 P.2d 431, 434 (1991).
MONT. CODE ANN. § 28-2-2111 Unaddressed by courts Unaddressed by courts
29 Nebraska Presumption is that indemnitee’s negligence is not covered unless the contract “contains express language to that effect or contains clear and unequivocal language” that represents the intentions of the parties.

– see Omaha Public Power Dist. v. Natkin & Co., 193 Neb. 518, 522, 227 N.W.2d 864, 867 (1975); Peter Kiewit Sons Co. v. O’Keefe Elevator Co., Inc., 191 Neb. 50, 51–52, 213 N.W.2d 731, 732 (1974).
NEB. REV. STAT. § 25-21,187 Unaddressed by courts Unaddressed by courts
30 Nevada For an agreement to indemnify the indemnitee for their own negligence, the intent of the parties to that extent must be explicitly or expressly stated within the contract, which applies to contributory negligence as well.

– see Reyburn Lawn & Landscaping Designers, Inc. v. Plaster Dev. Co., Inc., 127 Nev. 331, 334, 255 P.3d 268, 271 (2011).
NEV. REV. STAT. § AB 125, § 2. Unaddressed by courts Unaddressed by courts
31 New Hampshire Agreement to indemnify party for its own negligence are looked upon with disfavor by New Hampshire courts and strictly construed. However, express language is not necessary where the parties’ intention to protect for another’s negligence is clearly evident.

– see Merrimack School Dist. v. National School Bus Service, Inc., 140 N.H. 9, 12, 661 A.2d 1197, 1199 (1995).
N.H. REV. STAT. ANN. §§ 338-A:1, 338-A:2 Unaddressed by courts Unaddressed by courts
32 New Jersey Generally not enforceable unless intent to indemnify is unequivocally spelled out in contract. However, those agreements in maintenance or construction contracts violate public policy.

– see Mantilla v. NC Mall Assocs., 167 N.J 262, 269, 770 A.2d 1144, 1148–49 (2001).
N.J. STAT. ANN. § 2A:40A-1 New Jersey District courts have equated a “hold harmless” clause with “indemnification.”

– see Consult Urban Renewal Dev. Corp. v. T.R. Arnold & Assoc., Inc., No. CIV.A. 06-1684(WJM), 2007 WL 1175742, at *4 (D.N.J. Apr. 19, 2007).

Note: Federal case so it is only persuasive authority.
Parties must expressly limit the obligation to third-party claims, otherwise direct claims will be covered.

– see Metex Mfg. Corp. v. Manson, No. CIV. 05-2948(HAA), 2008 WL 877870, *10, 11 (D.N.J. Mar. 28, 2008).

Note: Federal case so it is only persuasive authority.
33 New Mexico Express reference to indemnitee’s negligence is not “necessary as a condition precedent to his being held harmless for his own negligence.” Broad indemnification provisions have been held sufficient to provide indemnification for indemnitee’s sole negligence.

– see Eichel v. Goode, Inc., 101 N.M. 246, 250, 680 P.2d 627, 631 (1984).
N.M. STAT. ANN. § 56-7-1 Unaddressed by courts Unaddressed by courts
34 New York There must be “unmistakable intent” to enforce an agreement to indemnify against the indemnitee’s own negligence.

– see Heimbach v. Metro. Transp. Auth., 75 N.Y.2d 387, 392, 553 N.E.2d 242, 246 (1990).
N.Y. GEN. OBLIG. LAW § 5-322.1 Unaddressed by courts Whether indemnification applies to first party and third-party claims depends on the intent of the contracting parties.

– see Bank of New York Mellon v. WMC Mortg., LLC, 41 Misc. 3d 1230(A), 981 N.Y.S. 2d 633 (N.Y. Supp. 2013) (unpublished table decision).

To enforce indemnity of direct claims, the language must reflect the intent of the parties to cover direct claims with unmistakable clarity; and be consistent with the purpose of the entire agreement.

– see Hooper Assocs., Ltd. V. AGS Computers, Inc., 74 N.Y.2d 487, 492, 548 N.E.2d 903, 905 (1989).

Without specific language, indemnification clauses only cover third-party claims, especially with regards to attorneys’ fees.

– see Mount Vernon City School Dist. v. Nova Cas. Co., 19 N.Y.3d 28, 39, 968 N.E.2d 439, 447 (2012).
35 North Carolina Agreements to indemnify indemnitee for its sole negligence are not favored by law and will be strictly construed. They must not be against public policy, which occurs when the contract is “private and the interest of the public is not involved and where there is no gross inequality in bargaining power.”

– see New River Crushed Stone, Inc. v. Austin Powder Co., 24 N.C. App. 285, 287, 210 S.E.2d 285, 287 (1974).
N.C. GEN. STAT. § 22B-1 North Carolina courts generally interpret “hold harmless” to be synonymous with “indemnification.”

– see Wiggins v. Wiggins, 162 N.C. App. 361, 590 S.E.2d 477 (2004) (unpublished table decision) (stating in footnote two that they “fail to see how these terms are distinguishable,” referring to “indemnification” and “save harmless”).
Requires express language that covers direct claims or that it can be reasonably inferred that the contract was intended to cover direct claims.

– see Michael v. Huffman Oil Co., Inc., 190 N.C. App. 256, 270, 661 S.E.2d 1, 10 (2008).
36 North Dakota Parties can indemnify for indemnitee’s sole negligence through clearly expressed language which can be achieved where an agreement produces for the purchase of insurance and additional insured status for the indemnitee.

– see Rupp v. American Crystal Sugar Co., 465 N.W.2d 614, 616–17 (N.D. 1991).
N.D. CENT. CODE § 9-8-02.1 Unaddressed by courts Unaddressed by courts
37 Ohio Parties can indemnify against the negligence of the indemnitee if the contract does so “beyond doubt by express stipulation.”

– see Kay v. Pennsylvania R.R. Co., 156 Ohio St. 503, 505, 103 N.E.2d 751, 753 (1952).
OHIO REV. CODE ANN. §§ 2305.31, 4123.82 Ohio courts generally interpret “hold harmless” to be synonymous with “indemnification.”

– see Office of Attorney General, State of Ohio, Opinion No. 96-060, 1996 Ohio Op. Atty. Gen. 2-233 (Ohio. A.G.), 1996 Ohio Op. Atty. Gen. No. 96-060, 1996 WL 708356.
Indemnification provisions may apply to direct claims if the parties do not expressly limit the provision to cover only third-party claims.

– see Battelle Memorial Institute v. Nowsco Pipeline Services, Inc., 56 F. Supp. 2d 944, 951 (S.D. Ohio 1999) (interpreting Ohio state law).
38 Oklahoma Agreements to indemnify a party against its own negligence are strictly construed. To be enforceable, the agreement must meet three conditions: “(1) the parties must express their intent to exculpate in unequivocally clear language; (2) the agreement must result from an arm’s-length transaction between parties of equal bargaining power; and (3) the exculpation must not violate public policy.”

– see Noble Steel, Inc. v. Williams Brothers Concrete Constr. Co., 49 P.3d 766, 770 (Okla. Ct. App. 2002).
OKLA. STAT. ANN. tit. 15, §§ 221, 422 Unaddressed by courts Unaddressed by courts
39 Oregon Indemnity agreement is enforceable even if it protects a party from its own negligence as long as the language is clear and explicit.

– see Southern Pac. Co. v. Morrison-Knudsen Co., 216 Or. 398, 410, 338 P.2d 665, 671 (1959).
OR. REV. STAT. § 30.140 Unaddressed by courts Broad language suggests that the indemnification provision only covers third-party claims. Express language that gives either party a right to attorneys’ fees in direct actions is necessary for the provision to cover direct claims.

– see Pacificorp v. SimplexGrinnell, LP, 256 Or. App. 665, 670, 303 P.3d 949, 952 (2013).
40 Pennsylvania Contract only indemnifies against the negligence of indemnitee if it is expressed in clear and unequivocal terms that are narrowly construed, commonly referred to as the “Perry-Ruzzi” Rule.

– see Ocean Spray Cranberries, Inc. v. Refrigerated Food Distributors, Inc., No. 0162 JULY.TERM 2001, 2006 WL 1768264, at *5 (Pa. Comm. Pl. May 18, 2006)
No statute Definition of “indemnify” included “to save harmless.”

– see Szymanski-Gallagher v. Chestnut Realty Co., 409 Pa. Super. 323, 597 A.2d 1225, 1230 n.2 (1991).
Pennsylvania requires express limitation to prevent direct claims from being included in the duty to indemnify.

– see STS Holdings, Inc. v. CDI Corp., No. 99-3480, 2004 WL 739869, at *2–3 (E.D. Pa. Mar. 19, 2004).

Note: Federal case so it is only persuasive authority.

The terms “defend, indemnify, and hold harmless” indicate an intent to restrict the indemnification obligations to third party claims.

– see Equitrans Servs., LLC v. Precision Pipeline, 154 F. Supp. 3d 189, 203–204 (W.D. Pa. 2015).

Note: Federal case so it is only persuasive authority.
41 Rhode Island A contract will not be interpreted to indemnify the indemnitee for its sole negligence unless the parties clearly and unequivocally expressed their intention to do so.

– see Rhode Island Hosp. Trust Nat. Bank v. Dudley Service Corp., 605 A.2d 1325, 1327 (R.I. 1992).
R.I. GEN. LAWS ANN. § 6-34-1 Unaddressed by courts Unaddressed by courts
42 South Carolina Language covering party for its own negligence must express the intent of the parties in clear and unequivocal terms.

– see Federal Pacific Elec. v. Carolina Production Enterprises, 298 S.C. 23, 26, 378 S.E.2d 56, 57 (Ct. App. 1989).
S.C. CODE ANN. §§ 27-40-330(a)(3), 32-2-10 Unaddressed by courts The standard indemnification clause does not cover direct actions between the parties themselves, but parties can craft a clause to provide otherwise.

– see Laurens Emergency Med. Specialists, PA v. M.S. Bailey & Sons Bankers, 355 S.C. 104, 109, 584 S.E.2d 375, 377 (2003).
43 South Dakota Requires language that is clear and definitely shows the parties’ intent to cover for one’s own negligence.

– see Schull Const. Co. v. Koenig, 80 S.D. 224, 230, 121 N.W.2d 559, 562 (1963).
S.D. CODIFIED LAWS § 56-3-18 South Dakota courts generally interpret “hold harmless” to be synonymous with “indemnification.”

– see Black Hills Excavating Services, Inc. v. Retail Const. Services, Inc., 2016 S.D. 23, ¶ 13 n.5, 877 N.W.2d 318, 324 n.5.
Clear language of the parties’ agreement controls and if it indicates the intent to cover claims between contracting parties, direct claims are covered.

– see Black Hills Excavating Services, Inc. v. Retail Const. Services, Inc., 2016 S.D. 23, ¶¶ 14–15, 877 N.W.2d 318, 324–25.
44 Tennessee Indemnification for one’s own negligence is permissible, but the agreement is strictly construed.

– see Power Equip. Co. v. J.A. Jones Const. Co., No. C.A. 844, 1989 WL 9544, at *2 (Tenn. Ct. App. Feb. 10, 1989).
TENN. CODE ANN. §§ 62-6-123, 66-28-203 Tennessee courts generally interpret “hold harmless” to be synonymous with “indemnification.”

– see Long v. McAllister-Long, 221 S.W.3d 1, 10 (Tenn. Ct. App. 2006).
A provision to “indemnify and save harmless [indemnitee] from and against all claims [and] suits,” has been found to only cover suits brought by third parties.

– see Colonial Pipeline Co. v. Nashville & E. R.R. Corp., 253 S.W.3d 616, 619, 624 (Tenn. Ct. App. 2007).

In order to cover direct claims, the language of the provision must reflect the intent of the parties to cover direct claims and be consistent with the purpose of the entire agreement so as not to lead to an absurd result.

– see Eatherly Const. Co. v. HTI Mem’l Hosp., No. M2003-02313-COA-R3-CV, 2005 WL 2217078, at *10–11 (Tenn. Ct. App. Sept. 12, 2005).
45 Texas Texas law has created two types of fair notice requirements for indemnity agreements that indemnify a party from its own negligence—the express negligence doctrine and the conspicuousness requirement. Actual notice or knowledge of the indemnity agreement eliminates the need to satisfy these requirements.

Conspicuousness requirement – requires that “something must appear on the face of the [contract] to attract the attention of a reasonable person when he looks at it.”

– see Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508, 508 n.2 (Tex. 1993).

Express negligence – requires that “parties seeking to indemnify the indemnitee from the consequences of its own negligence must express that intent in specific terms . . . within the four corners of the contract.”

– see Ethyl Corp. v. Daniel Const. Co., 725 S.W.2d 705, 708 (Tex. 1987).
TEX. INS. CODE § 151.102

Tex. Transp. Code § 623.0155

Tex. Civ. Prac. & Rem. Code §§ 127.002–.003
A hold harmless agreement is expressly designated as an affirmative defense because one party has released the other from potential liability thus surrendering any legal right, whereas an indemnity agreement is a promise to safeguard the indemnified party against loss which creates a potential cause of action in the indemnitee against the indemnitor.

– see Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993).
An indemnity agreement in Texas does not apply to direct claims between the parties unless there is express language providing for such.

– see Nat’l City Mortg. Co. v. Adams, 310 S.W.3d 139, 144 (Tex. App. 2010).
46 Utah Clear and unequivocal language is not necessary, but the agreement must provide a sufficiently clear and unequivocal expression of the parties’ intent for a party’s own negligence to be covered.

– see Healey v. J.B. Sheet Metal, Inc., 892 P.2d 1047, 1049 (Utah Ct. App. 1995).
UTAH CODE ANN. § 13-8-1 Utah courts generally interpret “hold harmless” to be synonymous with “indemnification.”

– see Gardner v. Gardner, 2012 UT App 374, ¶ 24, 294 P.3d 600, 607.
Unaddressed by courts
47 Vermont Indemnification agreements that expressly cover liability for an indemnitee’s own negligence are enforceable.

– see Furlon v. Haystack Mountain Ski Area, Inc., 136 Vt. 266, 267, 388 A.2d 403, 405 (1978).
No Statute Unaddressed by courts Unaddressed by courts
48 Virginia Indemnity agreement is enforceable even if it protects a party from its own negligence as long as the language is “clear and explicit”

– see Complaint of Christiansen Marine, Inc., No. 2:95CV896, 1996 WL 616188 (E.D. Va. Apr. 11, 1996).
VA. CODE ANN. § 11-4.1 Unaddressed by courts Unaddressed by courts
49 Washington Indemnification for indemnitee’s sole negligence is permissible if expressed in clear and unequivocal terms.

– see Northwest Airlines v. Hughes Air Corp., 104 Wash. 2d 152, 155, 702 P.2d 1192, 1194 (1985).
WASH. REV. CODE ANN. § 4.24.115 Unaddressed by courts Language that protected against “all loss” was enough to indemnify hospital officers from direct claims by the hospital.

– see Washington Hosp. Liability Ins. Fund v. Public Hosp. Dist. No. 1 of Clallam Cty., 58 Wash. App. 896, 897, 900, 795 P.2d 717, 718, 720 (1990).
50 West Virginia Contracts are not interpreted to indemnify one party for their own negligence unless such intention is expressed in “clear and definite language.”

– see Elk Run Coal Co., Inc. v. Canopius U.S. Ins., Inc., 235 W.Va. 513, 520–21, 775 S.E.2d 65, 72–73 (2015).
W. VA. CODE § 55-8-14 Unaddressed by courts Unaddressed by courts
51 Wisconsin Broad indemnification permissible but strictly construed.

– see Spivey v. Great Atl. & Pac. Tea Co., 79 Wis. 2d 58, 63, 255 N.W.2d 469 (1977).
Parties have claimed WIS. STAT. § 895.447 prohibits indemnification provisions in construction contracts, but this statute has been held to not void indemnification agreements.

– see Gerdmann v. U.S. Fire Insurance Co., 119 Wis. 2d 367, 373, 350 N.W.2d 730, 734 (Ct. App. 1984).
Wisconsin courts have not directly addressed this issue. However, there is a general policy that all contract terms will be given meaning so as not to render them “mere surplusage.”

– see Hastreiter v. Karau Bldgs., Inc., 57 Wis. 2d 746, 747, 205 N.W.2d 162, 163 (1973) (giving meaning to the save harmless clause to avoid it being mere surplusage); see also Goebel v. First Federal Sav. And Loan Ass’n of Racine, 83 Wis. 2d 668, 680, 266 N.W.2d 352, 358 (1978) (“[A] contract is to be construed so as to give a reasonable meaning to each provision of the contract, and that courts must avoid a construction which renders portions of a contract meaningless, inexplicable or mere surplusage.”).
Whether indemnification provision includes first party claims is an issue for the jury to decide.

– see AVL Powertrain Eng’g, Inc. v. Fairbanks Morse Engine, 178 F. Supp. 3d 765, 783 (W.D. Wis. 2016)*
*Note: Federal case so it is only persuasive authority.

The Wisconsin Court of Appeals in a non-published opinion (no precedential value because issued in 2004) stated that general provisions to indemnify are ordinarily only applicable to third party claims.

– Bus. Park Dev. Co., LLC v. Molecular Biology Res., Inc., 2004 WI App 167, ¶ 20, 276 Wis. 2d 310, 686 N.W.2d 456.
52 Wyoming Contract will only indemnify the indemnitee for their own negligence if such an intention is expressed in clear and unequivocal terms.

– see Northwinds of Wyoming, Inc. v. Phillips Petroleum Co., 779 P.2d 753, 758 (Wyo. 1989).
WYO. STAT. ANN. § 30–1–131 Unaddressed by courts “Although these provisions are stated in policy terminology in various ways, of which this policy is not the clearest, we determine, first, that this is an assumed liability clause and not a direct obligation indemnity provision. The difference is defined in the cases to contrast between the assumed liability clause which obligates the insured to hold harmless a third party and the direct party liability coverage which insures against claims founded on some breach of the insured’s direct contractual obligation.”

– see First Wyoming Bank, N.A., Jackson Hole v. Continental Ins. Co., 860 P.2d 1064, 1071–0172 (1993), modified in part, 860 P.2d 1094 (Wyo. 1993).

Note: This case was more focused on insurance coverage, but some of the ideas may be applicable were the courts in Wyoming to look at the direct vs. third party issue focused specifically on indemnity provisions.