Right of indemnity established against contractor when contract for service is unambiguous, containing explicit hold harmless and damages responsibility provisions, and subcontractor’s job-related actions result in property damage.

The plaintiff, a construction entity, originally contracted with the defendant to provide finished concrete products to a construction site. The defendant subsequently contracted with a third party (the subcontractor) to provide wet concrete to the site. When a subcontractor-operated concrete mixing truck destroyed property belonging to the site’s owner, the owner deducted the damages from the balance it owed to the plaintiff, who then brought an action to collect the damages amount from the defendant. 

The Delaware Superior Court agreed that the contract between the plaintiff and the defendant established that the defendant was responsible for any damages to the plaintiff’s or the owner’s equipment or property, or any privately-owned equipment and property, due to the defendant’s operations. The contract also contained an indemnity clause, stating that the defendant would indemnify and hold the plaintiff harmless from any act or omission of the defendant’s contractors (i.e., the subcontractor). All contract provisions also explicitly applied to subcontractors of the defendant as if they were the defendant’s employees. The defendant had maintained an insurance policy naming the plaintiff as an additional insured, and the plaintiff relied on that insurance when permitting the defendant to perform services at the construction site. 

The Delaware Superior Court concluded that the defendant breached the contract by refusing to indemnify the plaintiff against damages caused by the subcontractor. Moreover, unless a contract is ambiguous, the court stated that it will not “destroy or twist” the language “under the guise of construing it” because it is not the court’s role to rewrite the contract. Therefore, the court granted the plaintiff’s motion for partial summary judgment as to the defendant’s breach of contract because indemnity is not conditioned upon whether there was an element of control—as this was a contract matter and not one of breach of duty or negligence—but, rather, was triggered when the plaintiff was charged for the damages the subcontractor caused to the owner’s property. 
 

_{Case Law Alerts, 3rd Quarter, July 2023 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2023 Marshall Dennehey, all rights reserved. This article may not be reprinted without the express written permission of our firm.}