Construction Law Insights

Wasa Props., L.L.C. v. Chesapeake Bay Contrs., Inc., 103 Va. Cir. 423 (City of Chesapeake Cir. Ct. Dec. 11, 2019)

 In April 2015, Wasa Properties, L.L.C. (“Wasa”) and Chesapeake Bay Contractors, Inc. (“CBC”) executed a contract for CBC to complete utility work at Lake Thrasher (the “Contract”). Wasa alleged that CBC breached the Contract and caused $405,584.90 in damages by incorrectly installing water lines, which damaged other utility lines. The Contract contained the following (the “Indemnification Provision”):

  • To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner and his agents and employees from and against all claims, damages, losses, and expenses, including but not limited to attorney’s fees arising out of or resulting from the performance of the Work.

CBC demurred to Wasa’s Amended Complaint, arguing that the Indemnification Provision violated Virginia Code § 11-4.1 because it required CBC to indemnify Wasa against Wasa’s own negligence.

The Court overruled CBC’s demurrer. Virginia Code § 11-4.1 does not allow an indemnification provision to be so broad as to indemnify the indemnitee from its own negligence. Courts look at the language of the provision, disregarding surrounding circumstances from which the claim for indemnification arose. Reviewing the Contract, the Court found that the Contract’s Indemnification Provision did not expressly allow the owner to be indemnified for its own negligence and that the Contract indicated that only CBC was to perform the work identified as the “Work” in the Contract.

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