Indemnification clauses, what type do you have?

Indemnification clauses in contracts are common. An indemnification clause basically requires one party to indemnify another, i.e. to pay for a loss suffered by another pursuant to some event or condition. There are three basic types of indemnification clauses, which were conveniently described in McCrary Construction Co. v. Metal Deck Specialists, 133 Cal. App. 4th 1528:

"Some California cases have interpreted express indemnity provisions by reference to a classification system described in MacDonald & Kruse, Inc. v. San Jose Steel Co. (1972) 29 Cal. App. 3d 413 [105 Cal. Rptr. 725] [***14] (MacDonald & Kruse). According to MacDonald & Kruse, the first type of indemnity provision (type I) “provides ‘expressly and unequivocally’ that the indemnitor is to indemnify the indemnitee for, among other things, the negligence of the indemnitee,” and the indemnitee is indemnified whether its liability arises from its sole or concurrent negligence. (Id. at p. 419.) Under the second type of indemnity clause, the indemnitee would be indemnified for his or her own passive negligence but not for active negligence.
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The third type of indemnity clause “is that which provides that the indemnitor is to indemnify the indemnitee for the indemnitee's liabilities caused by the indemnitor, but which does not provide that the indemnitor is to indemnify the indemnitee for the indemnitee's liabilities that were caused by other than the indemnitor. Under this type of provision, any negligence on the part of the indemnitee, either active or passive, will bar indemnification against the indemnitor irrespective of whether the indemnitor may also have been a cause of the indemnitee's liability.” (MacDonald & Kruse, at p. 420.)"

Generally speaking if you are the potential indemnitee, the party to whom payment would be made, you want a Type I provision if allowed. Certain types of contracts or relationships preclude the availability of Type I provisions, you should speak to a properly licensed attorney or perform your own original research to determine what limitations there may be.

Conversely, if you are the person who would have to pay up, then you would want to limit the instances when you would have to do so by having a Type II or III, or no indemnity provision at all.

If you find yourself needing to interpret, draft or negotiate over an indemnity provision you should consult with an attorney or perform your own original research. Otherwise, you might be stuck with an indemnification provision that does not have the effect that you thought. Read this post by clicking here about a situation where a party believed it had a Type I provision but a court found otherwise.