Indemnification agreements can be enforced even without a showing of negligence on part of the indemnitor. In Beharovic v 18 East 41st St. Partners, Inc., 18 East hired Perfect Building Maintenance Corp. to maintain and clean its building. Plaintiff, a PBM employee, fell on stairs claiming they were shaky and the carpet was loose. Plaintiff sued 18 East, and it impleaded PBM based on an indemnification agreement.

18 East moved for summary judgment against PBM. PBM opposed on the basis that it was premature without a finding that it was negligent. The Court, however, held that since the contract required PBM to indemnify 18 East for any claims “arising out of [PBM’s] work,” 18 East was entitled to indemnification notwithstanding that there was no finding of PBM’s negligence. The Court also found that the contract did not violate General Obligations Law § 5-322.1, since it carved out an exception whereby PBM was not required to indemnify 18 East for 18 East’s own negligence.

The takeaway from this case is: contract at your own peril. Sometimes a contractor can be completely free from negligence, yet still have a duty to indemnify another party. It is important to advise clients and insureds to closely read the indemnification provisions in contracts to ensure they are not agreeing to more than they bargained for.

Thanks to Moya O’Connor for her contribution to this post.

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