Under Construction - June 2013
Letter from the Editor
by James J. Sienicki
Welcome to our summer 2013 issue on indemnity and additional insured provisions in the Southwest. While contractual provisions that define liability in the event of accidental damage or loss affect most construction projects, the articles in this issue demonstrate how the laws and rules concerning indemnity and additional insured provisions can vary greatly from state to state. In the opening article, Eric Spencer and I explain pertinent concepts of indemnity and insurance and emphasize how important it is for owners, contractors, subcontractors and design professionals to be aware of indemnity agreements, additional insured provisions and applicable law. Though we work through some of the potential requirements of and restrictions on indemnity and additional insured provisions in the state of Arizona, the subsequent articles regarding these types of agreements in Nevada, California, New Mexico, Colorado and Utah make one thing clear: regardless of where a project occurs, it is imperative that all interested parties review their contractual obligations and understand the applicable law.
As Leon Mead explains in our second article, Nevada has no statutory prohibition on indemnification agreements for construction projects. After discussing a number of significant rulings made by the Nevada Supreme Court regarding indemnification, Mead makes a call to professionals in the construction industry in Nevada to come together to reach a compromise on indemnification and defense obligations.
In our third article, Stuart Einbinder and Jeff Singletary discuss changes in the California laws governing indemnification in the construction industry. Einbinder and Singletary speculate that one “peculiar” exception will be interesting to monitor as it is addressed by the California courts over the next several years.
In our fourth article, Josh Grabel provides an overview of the New Mexico Anti-Indemnity Act, which attempts to hold each party accountable for its actions on a construction site. Grabel notes that any public or private contract that involves the construction, alteration, repair or maintenance of any real property physically located in New Mexico is likely to be affected by this Act.
In our fifth article, Jonathan Allen discusses the significance of Colorado’s anti-indemnification statute, which attempts to void, with some exceptions, any construction contract that imposes broad indemnification obligations that extend beyond the negligent party.
For our final article, Jeremy Stewart reviews Utah’s anti-indemnification statute and outlines the primary requirements of Utah Code § 13-8-1 as well as some of its key exceptions.
I hope you enjoy and find the articles in this issue informative and useful. If you have any ideas for future articles or issues, please feel free to e-mail me with your suggestions. Enjoy the summer!