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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