holding that “[t]he additional phrase ‘to the extent caused’ . . . suggests a ‘comparative negligence’ construction under which each party is accountable ‘to the extent’ their negligence contributes to the injury”
How later courts described this case
- holding that “[t]he additional phrase ‘to the extent caused’ . . . suggests a ‘comparative negligence’ construction under which each party is accountable ‘to the extent’ their negligence contributes to the injury”
- finding, in a nearly identical indemnity clause, "[t]he additional phrase, 'to the extent caused,' ... suggests a 'comparative negligence' construction under which each party is accountable 'to the extent' their negligence contributes to the injury"
- providing that the phrase “indemnify and hold harmless” along with “to the extent caused” "suggests a ‘comparative negligence’ construction under which each party is accountable ‘to the extent’ their negligence contributes to the injury”
- finding the phrase, "regardless of whether it is caused in part by a party indemnified hereunder" failed "under the strict construction standard"
Written by the judges who cited it.
Distinguished
Distinguished by Concord & Cumberland Horizontal Prop. Regime v. Concord & Cumberland, LLC, 424 S.C. 639 (2018)
Superior claims Braegelmann is inapplicable because it involves "a factually distinguishable situation-an on-the-job personal injury claim.
The opinion
POPOVICH, Chief Judge,
dissenting.
I respectfully dissent and would affirm the trial court, which had little difficulty recognizing the clear meaning of the indemnification provision and said:
There is in fact no difference between the language “regardless of whether it is caused in part by a party indemnified hereunder” as found in the instant indemnification agreement and the language “claims for which the contractor may be, or may be claimed to be, liable” which the Johnson court approved.
The language in the instant indemnification agreement “clearly and unequivocally states the intent that the indemnitor is liable to the indemnitee for its negligence.” Johnson, supra., 294 N.W.2d at 288. Further, the language is clear in its intent to hold the contractor harmless from all liability if the sub-contractor is in any way found to be negligent.
The language “to the extent caused in whole or in part by any negligent act or omission of the sub-contractor * * regardless of whether it is caused in part by a party indemnified here-under,” clearly manifests an intent that the subcontractor will be completely liable for indemnification if in any way negligent.
The parties clearly agreed to the provision which was entered into prior to August 1, 1984, after which date such provisions are void and unenforceable. Minn. Stat. § 337.02 (1984). I believe the provision met the strict construction test and is similar to the standard Associated General Contractors’ indemnity provision that was upheld by the Minnesota Supreme Court.