Construction contract indemnification provisions are governed under Florida Statute s. 725.06. This is a very important statute to know if you are drafting indemnification provisions for any type of construction contract. (There is also Florida Statute s. 725.08 that discusses indemnification provisions applicable to design professionals that is also worth knowing.)
Contained within s. 725.06, is a limitation on indemnification provisions applicable to public construction projects:
(2) A construction contract for a public agency or in connection with a public agency’s project may require a party to that contract to indemnify and hold harmless the other party to the contract, their officers and employees, from liabilities, damages, losses and costs, including, but not limited to, reasonable attorney’s fees, to the extent caused by the negligence, recklessness, or intentional wrongful misconduct of the indemnifying party and persons employed or utilized by the indemnifying party in the performance of the construction contract.
(3) Except as specifically provided in subsection (2), a construction contract for a public agency or in connection with a public agency’s project may not require one party to indemnify, defend, or hold harmless the other party, its employees, officers, directors, or agents from any liability, damage, loss, claim, action, or proceeding, and any such contract provision is void as against public policy of this state.
The key to this contractual indemnification limitation on public projects is the bolded language “to the extent caused by….” This language is comparative fault language meaning the indemnitor (party giving indemnification) is only responsible for indemnifying the indemnitee (party receiving the indemnification) “to the extent caused by the negligence, recklessness, or intentional wrongful misconduct” of the indemnitee. The language “to the extent caused by” is more limiting than an intermediate or broad form of indemnification provision that expands the scope of the indemnitor’s obligation to indemnify the indemnitee (for example, for negligence acts caused by the indemnitee). Stated differently, this limitation would certainly seem to preclude the indemnitor from indemnifying the indemnitee for the indemnitee’s negligence.
But, there is not yet a Florida case that truly discusses the application of this contractual indemnification limitation on public projects.
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