Legal Memorandum: Validity of an Indemnity Clause in a Contract

Issue: Whether an indemnity clause contained in a contract is valid under Massachusetts law.

Area of Law: Alternative Dispute Resolution, Business Organizations & Contracts, Construction Law
Keywords: Indemnification provisions; Contract for construction
Jurisdiction: Massachusetts
Cited Cases: 681 N.E.2d 288; 713 N.E.2d 984; 47 Mass. App. Ct. 367; 495 N.E.2d 88; 679 N.E.2d 559; 667 N.E.2d 904; 652 N.E.2d 635; 677 N.E.2d 256; 42 Mass. App. Ct. 591; 22 Mass. App. Ct. 598; 634 N.E.2d 134; 616 N.E.2d 829; 667 N.E.2d 907; 671 N.E.2d 953; 35 Mass. App. Ct. 100; 619 N.E.2d 351; 667 N.E.2d 906
Cited Statutes: Mass. Gen. Laws ch. 149, § 29C (1996)
Date: 09/01/2000

In 1985, the Massachusetts legislature rewrote § 29C of Chapter 149 in order to make certain indemnification provisions in construction contracts void.  The section provides, in part, that “[a]ny provision for or in connection with a contract for construction . . . which requires a subcontractor to indemnify any party for injury to persons or damage to property not caused by  the subcontractor or its employees, agents, or subcontractors, shall be void.”  Mass. Gen. Laws ch. 149, § 29C (1996) (emphasis added).

After the enactment of § 29C, courts have found void indemnification provisions that require the subcontractor to indemnify the general contractor for damages “not caused by” the subcontractor. Such unconditional indemnity provisions are found to violate the clear language of the statute.  For example, in Harnois v. Quannapowitt Dev., Inc., 35 Mass. App. Ct. 286, 619 N.E.2d 351 (1993), the general contractor, Quannapowitt Development (Quannapowitt) had an indemnity provision in its subcontracts that read: “The Subcontractor further agrees that he  . . . shall indemnify the Owner, the Contractor, its or their officers, agents and employees, and save them harmless from any and all liability . . . whether such liability be the result of the alleged active or passive negligence of the Owner or Contractor.”  Id., 619 N.E.2d at 351-52 n.1.  Harnois, an employee of a subcontractor (C&R Development), was injured on the construction site, and sought to recover damages from Quannapowitt.  Quannapowitt impleaded C&R, the subcontractor,  and sought to enforce the indemnity provision contained in the subcontract.  Id. at 352.