The New York Court of Appeals decision in Brooks v. Judlau Contracting, Inc.
You are watching: To the fullest extent permitted by law
, 11 N.Y.3d 204 (N.Y. 2008) additionally clarified the scope of permissible contractual indemnification provisions and held that New York’s General Obligations Law § 5-322.1 permits a partly negligent general contractor to look for contractual indemnification from its subcontractor for those negligent acts attributable to its subcontractor.
Plaintiff Stephen J. Brooks, an ironworker, sued the general contractor, Judlau Contracting, Inc. (“Judlau”), for injuries continual on a highmeans project while employed by Judlau’s subcontractor Thunderbird Constructors, Inc. (“Thunderbird”). Judlau filed a Third-Party Complaint against Thunderbird based upon an indemnification agreement gotten in into in between the parties through which Thunderbird agreed to organize Judlau harmmuch less from all licapability developing from Thunderbird’s work-related, consisting of all clintends relating to its subcontractors, service providers or employees. Thunderbird sneed to a directed verdict on Judlau’s Third-Party Complaint and also, after trial, the Supreme Court dismissed the Third-Party Complaint on the basis that Judlau’s installation of a safety cable in an unsafe manner was an extensive variable in leading to plaintiff’s accident, that Judlau was accordingly proactively negligent to some level and that such negligence foreclosed Judlau’s entitlement to contractual indemnification from Thunderbird under General Obligations Law § 5-322.1. That statutory provision gives in pertinent part that:
“A covenant, promise, agreement or understanding in, or in link via . . . a contract or agreement family member to the building, change, repair or maintenance of a building . . . purporting to indemnify or organize harmless the promicheck out against licapability for damages occurring out of bodily injury to persons or damages to home added to, resulted in by or resulting from the negligence of the promisee, his agents or employees, or indemnitee, whether such negligence be in entirety or in part, is against public plan and also is void and also unenforceable.”
The Appellate Division affirmed, but certified a question of law to the New York Court of Appeals as to whether the dismissal of the third-party insurance claim for contractual indemnification was appropriate.
The New York Court of Appeals reversed and held that the indemnification provision in the Judlau contract was enforceable and also did not violate General Obligations Law § 5-322.1. The underlying indemnification provision obligated Thunderbird to indemnify Judlau “to the fullest degree permitted by regulation.” The Court figured out that this language did not enbig Thunderbird’s duty to require full contractual indemnification, which would encompass Judlau’s negligence. As the Court stated, “the expression ‘to the fullest level permitted by law’ boundaries fairly than increases a promisor’s indemnification obligation . . .
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Contractors functioning in New York should be guided by the Brooks decision as soon as crafting contractual indemnification provisions. In particular, the Court’s holding that “tright here is no language within General Obligations Law § 5-322.1 that stays clear of partial indemnification provisions such as the one presently prior to us from being applied in a situation wbelow it is presented that both a general contractor and also its subcontractor are joint tortfeasors” suggests that, under New York law, contractual indemnification provisions making use of the “fullest degree of the law” language contained in the provision at problem in Brooks will certainly not violate General Obligations Law § 5-322.1 and also will permit a contractor, also one that is partly negligent, to pursue a contractual indemnification case for dameras led to by the subcontractor’s negligence.