Specificity is Required for Indemnification Agreements

Jose Jiminez was a plumber who entered into a subcontract with Gill Plumbing which had been retained by a general contractor to perform work on a dormitory at Georgia Southern University. A pipe burst causing almost $1,000,000.00 in damages. Gill Plumbing claimed that Jiminez was required to indemnify Gill for any claims made against Gill as a result of the plumbing work.

The contract and insurance indemnity agreement signed by Jiminez was written in the past tense, indicating that work had already been performed, when it had not, and did not set out specifically who was the “subcontractor” and who was the “contractor” under the agreement. Because there were various contractors on the job, the Court of Appeals found that the contract was nonspecific as to whom Jiminez promised to indemnify.

The Court wrote that “the words of a contract of indemnification must be construed strictly against the indemnitee” and that “the test of an enforceable contract is whether it is expressed in language sufficiently plain and explicit to convey what the parties agreed upon.” Applying these rules, the Court decided that the agreement signed by Jiminez was not sufficiently explicit and therefore was unenforceable as a matter of law.

The take away message from this case is that indemnification agreements should not be used generically and should be specifically tailored to each construction project. Otherwise, the party seeking indemnification runs the risk that the agreement will be found unenforceable.

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About the Author

Michael Rust graduated from Emory University in 1980 and Emory University School of Law in 1983 where he was Notes and Comments editor of the Emory Law Journal (Law Review). Since that time, he has maintained an active trial practice in the state of Georgia both in State and Federal Courts. Mr. Rust teaches litigation as part of Emory University School of Law’s annual Trial Practice Program. He has received AV rating from Martindale Hubble, the highest rating afforded to lawyers by their peers.