Washington expands statutory limitation on contractual indemnity obligations

By Brenda Molner
April 16, 2012

Washington will alter the limitation on indemnity obligations in the construction arena when amendments to RCW 4.24.115 become effective on June 7, 2012. The current version of the law limits the contractual indemnity obligations a party can incur related to the construction, alteration, repair, maintenance, or development of a building, highway, railroad, or other project attached to real property (or a motor transportation contract). In particular, it limits the duty to defend to the extent of the indemnitor's own negligence.  The amendment expands the indemnity limitations to apply to "architectural, landscape architectural, engineering and land surveying services." 

RCW 4.24.115 was originally enacted to curb the growing practice of contractually pushing more and more responsibility for problems related to construction projects to those entities (typically lower tier subcontractors) that were not in a position to control the risk, did not have the leverage to change the language of the contract, and often could not fully fund such an indemnity obligation. In the past, design professionals have argued in the courts that the law applied to them, with varied success. The revisions to the law now make clear that indemnity limitations do apply to design professionals. 

The new version of RCW 4.24.115 expands the scope of the limitation in two other respects. First, the existing limitation prohibits Party A from indemnifying Party B for personal injury or property damages arising out of Party B’s sole negligence. The new limitation also prohibits Party A from agreeing to take on the duty and costs to defend against such claims. Additionally the amendment applies the limitation to liability for all damages arising out of the services provided by Party A, not just damages arising out of bodily injury or damage to property.

To see the new law in its entirety click here.

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