Negotiating indemnity obligations

Client-drafted indemnity obligations are often broad and include defense obligations. Often, clients are unwilling to amend indemnity obligations. If a firm wants to protect itself against the possibility of having to defend its client and paying contractual obligations beyond its professional liability insurance coverage for providing professional services, it may be better off adding a... Continue Reading →

New California law and uninsured defense obligations

California recently enacted a law that appears to lessen significantly the burden of indemnity provisions in contracts governed by the state’s laws. The goal of the legislation was to remove the immediate duty by design professionals to defend public and private clients. That duty was based on the mere involvement of the design professional on a project even... Continue Reading →

Georgia amends anti-indemnity statute

Georgia recently adopted legislation that voids indemnity clauses in agreements for services provided by an architect, engineer, or land surveyor, unless the indemnity is limited “to the extent” caused by the negligence, recklessness, or misconduct of a party. The new law only applies to agreements that are executed after July 1, 2016; it does not... Continue Reading →

To whom should you extend your indemnity obligations?

It seems that indemnity provisions are increasingly less likely to limit a design professional’s obligation to only the design professional’s client. We regularly review indemnity provisions that include the client’s parent company, affiliates, subsidiaries, successors and assigns, officers, employees, representatives and agents, the project’s owners, a county client, a state client, lenders, contractors, subcontractors, and... Continue Reading →

Managing the risks of retaining subconsultants

Many design professionals are concerned about their “vicarious liability” when retaining subconsultants. Many others don’t realize that a prime design professional is always responsible for the actions—including negligence—of those providing services through the prime design professional. This exposure is amplified if the subconsultant doesn’t have adequate insurance. Although the Schinnerer professional liability insurance program provides... Continue Reading →

Providing services in emergency situations

During emergencies, design professionals are often willing to volunteer their services to assist in protecting public health and safety. Prudent design professionals realize that these efforts, whether volunteer or paid, create potential liability. While some states have volunteer protection acts that afford the immunity of the state to licensed designed professionals providing services during emergency... Continue Reading →

Weasel Words

When I review a contract, I give it a quick glance and broadly categorize it as either “reasonable” or one with “weasel words” before I delve into the review. Weasel words is my characterization of clauses that unreasonably shift risk to one party. Although I often use the term for owner-drafted contracts, I have run... Continue Reading →

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