Not really, but it caught your attention…
In contracts that I draft, I try (really, I do) to be as fair and balanced as possible. However, when it comes to drafting or negotiating an indemnification provision, I tend to be a little more biased to my employer. Even so, I always wrap-up an indemnification provision with some wording that appears counter-intuitive in that it is absolutely more beneficial to the other contracting party than it is to my employer: “…the foregoing indemnity shall not apply to the extent that the applicable claim resulted from the acts or omissions of a party, its officers, directors, agents, or employees.”
What that wording means is that my employer isn’t going to be indemnified by the other contracting party if my employer did or didn’t do something that ultimately resulted in a claim against my employer. Sounds risky, because I’m intentionally carving out something that my employer might be indemnified for. Occasionally, someone will ask why I include the wording because it’s not beneficial to my employer and that someone will also likely ask whether it’s better to leave the wording out and see if the other contracting party asks for like language to be included (if they think of asking for it).
Here’s why… Over 40 states have enacted legislation that voids certain types of indemnification provisions on the basis that these provisions are against public policy. Mostly, such statutes are oriented toward construction and prohibit (for public policy reasons) the shifting of the burden of liability from contractor to sub-contractor where the contractor is the cause of the claim (through act or omission). Despite the orientation to construction, I don’t want to run afoul of my state’s anti-indemnity provision, hence I include the above described wording in the indemnification provision of almost every contract type I draft or negotiate.
(A quick Internet search will lead you to scholarly articles that do a
much better job of explaining anti-indemnity statues than I do here. I recommend you read up rather than relying solely on this blog post.)