Most construction contracts among developers, general contractors, and sub-contractors contain provisions regarding providing a defense and/or contractual indemnity. Enforceability of either provision turns on the specific triggering language contained therein. Analysis of your case’s facts and application to the triggering language is a critical component to determining immediate and long-term exposure for your case. A recently observed trend is to forego argument that both the defense and indemnity provisions were triggered and instead to move solely for a ruling that the defense provision was triggered. A ruling—regardless of the outcome—will have significant effects on the litigation in terms of leverage, exposure, and strategy.

If you have any questions or concerns regarding exposure analysis for a defense or indemnity provision, our construction group is well-versed in these provisions. Contact the group at: construction@kubickidraper.com.