Morris v. DSA Roanoke, LLC, 2019 Va. Cir. LEXIS 204 (City of Roanoke Cir. Ct. May 31, 2019)
The Court granted Thomas Builders, Inc.’s (“Thomas Builders”) demurrer as to Count I of the Amended Complaint of Third-Party Plaintiff DSA Roanoke, LLC (“DSA”) because “a grant of demurrer is appropriate in an instance where an indemnification provision in a construction contract can only function to indemnify a party from damages caused by its own negligence.” Although the court held that the indemnification provision did not on its face violate Virginia Code § 11-4.1 (i.e. Virginia’s anti-indemnity statute) dismissal of the claim “accords with the public policy goals behind Virginia’s restriction against provisions that provide such indemnification.”
Kenneth Morris sought to recover from DSA on the basis of DSA’s negligence. DSA, therefore, could only recover through the indemnification provision between it and Thomas Builders for damages caused by DSA’s own negligence. In Uniwest Construction, Inc. v. Amtech Elevator Services, Inc., the Supreme Court of Virginia struck down an indemnification provision that reached damage caused by the indemnitee, even if the damage did not result solely from the negligence of the indemnitee. The Court, therefore, reasoned that DSA could not recover through the indemnification provision on the basis that it could later show that Thomas Builders also contributed to any negligence.
