NY Supreme Court Strikes Contractor Liability Limitation Provision

John Caravella Esq.
February 20, 2012 — 1,270 views  

Many contractors and subcontractors go about their work feeling protected from claims for damages because their agreements contain certain exclusions. Some of these agreements will even have language stating 'Not responsible for [X, Y, and Z]'.

But the ruling handed down February 14, 2012 by the Supreme Court, Nassau County serves as a reminder that contractual indemnity provisions are more of a privilege than a right, and are not subject to enforcement automatically.

"The law is settled that a party seeking contractual indemnification must prove itself free of negligence in order to enforce the indemnity clause." Cibellis Constr., Inc., v. Hamilton Owners, Inc. This effectively places an affirmative burden on the party seeking the enforcement of this protection to prove that no negligence on their part exists. The proving of any negative event can be challenging however, like proving the loch ness monster does not exist.

Ultimately this line of logic is what caused the ruling to come down against this contractor, as the court declined enforcement of its contractual indemnity protection. As the underlying project facts of this matter relate to damages to the underground electrical service caused during excavation of a driveway, it was found to be evidence of negligence on the contractor's part for failure to call the "one-call" notification system to verify the precise locations of the underground facilities.

John Caravella Esq.

The Law Offices of John Caravella, P.C.

Mr. Caravella, a construction attorney admitted to practice in all NY and FL state courts, represents architects, contractors, sub-contractors, engineers & owners in all phases of construction. He has education & working experience in architecture.