Indemnification Clause Contract Drafting Information
Types of indemnification: broad form (the indemnitor indemnifies the indemnitee for: all losses arising from the contract, including losses caused by the indemnitee's own negligence), intermediate form (the indemnitor indemnifies for: all losses except those caused solely by the indemnitee's own negligence), and limited form (the indemnitor indemnifies only for: losses caused by the indemnitor's own negligence). The indemnification clause typically covers: defense costs (the indemnitor agrees to: defend the indemnitee from claims), losses (the indemnitor agrees to: pay for damages, judgments, and settlements), and expenses (the indemnitor agrees to: reimburse attorney's fees, court costs, and other expenses). Practical considerations: the indemnitor must have: the financial capacity to perform (the indemnification is worthless if the indemnitor is insolvent), and the indemnification should be: backed by insurance (the indemnitor maintains liability insurance covering the indemnified risks).
Florida Legal Definition
Indemnification clauses in Florida are governed by: the contract terms and Florida common law. Under Florida law: broad form indemnification is generally enforceable (unlike some states that prohibit indemnification for the indemnitee's own negligence). Under §725.06: in construction contracts: indemnification for the indemnitee's own negligence is void to the extent it exceeds: the limits of the indemnitor's insurance (the construction anti-indemnity statute). Under §725.08: in residential construction: certain indemnification provisions are void as against public policy. Under Florida practice: the enforceability of the indemnification clause depends on: the clear and unambiguous language (the intent to indemnify must be clearly expressed, particularly: the intent to indemnify for the indemnitee's own negligence).
How It's Used in Practice
Attorneys draft and negotiate indemnification clauses. For the indemnitee, the attorney: drafts broad indemnification language (covering: the indemnitor's negligence, the indemnitee's passive negligence, and third-party claims), includes the duty to defend (the indemnitor must: defend the indemnitee from the outset, not merely reimburse after the fact), requires insurance backing (the indemnitor must maintain: general liability insurance with limits sufficient to cover the indemnified risks), and includes an additional insured requirement (the indemnitee is named as an additional insured on the indemnitor's policy). For the indemnitor, the attorney: limits the scope (intermediate or limited form: excluding the indemnitee's own negligence), caps the indemnification (limiting the indemnitor's exposure to: a specified dollar amount or the indemnitor's insurance limits), and ensures the language is clear and unambiguous. The attorney advises: the indemnification clause is the risk allocation mechanism of the contract; both parties should: understand the scope, ensure adequate insurance, and negotiate the terms carefully.
Key Takeaways
- Indemnification: one party compensates the other for losses.
- Broad form: covers indemnitee's negligence. Limited: only indemnitor's.
- §725.06: FL construction anti-indemnity statute.
- Language must be clear and unambiguous.
- Backed by insurance; additional insured requirement.
Disclaimer: The information and opinions provided are for general educational, informational or entertainment purposes only and should not be construed as legal advice or a substitute for consultation with a qualified attorney. Any information that you read does not create an attorney–client relationship with Barnes Walker, Goethe, Perron, Shea & Johnson, PLLC, or any of its attorneys. Because laws, regulations, and court interpretations may change over time, the definitions and explanations provided here may not reflect the most current legal standards. The application of law varies depending on your particular facts and jurisdiction. For advice regarding your specific situation, please contact one of our Florida attorneys for personalized guidance.
Business Attorneys
Real Estate Attorneys
Litigation Attorneys
Estate Planning Attorneys
Business Sale Closings
How to Sell a Business in Florida
Contact Information:
Tel: 941-867-7818
Email: info@barneswalker.com
Trust • Experience • Results