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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Real Property - Transactions

Date & Time
  • event Date

    Tuesday, April 1, 2025

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00

This CLE webinar will discuss key differences between commonly used risk allocation terms in contracts--namely, defend, indemnify, and hold harmless--and how these apply to construction projects. The panel will examine the nuanced meanings of and distinct obligations for each, review current case law and statutory authority demonstrating differing jurisdictional interpretations, and provide best practices for drafting these terms.

Faculty

Bartelemucci Lawrence
Shareholder
Meister Seelig & Fein Pllc

Mr. Bartelemucci represents developers, owners, contractors, and design professionals with their construction and business needs. He regularly drafts and negotiates manuscript and AIA owner-builder, construction management, architect, design-build, and development agreements. Mr. Bartelemucci works on major PPP projects, and has extensive experience representing government entities, hospitals, and institutional clients with their development and construction needs. He also has substantial experience dealing with insurance issues related to construction, both while the contract is being negotiated and after a claim has been made, as well as with prosecuting claims under payment and performance surety bonds, including defending subrogation claims.

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Volack Richard
Shareholder
Peckar & Abramson, PC

Mr. Volack counsels some of the country’s largest general contractors, construction managers, and owners in all aspects of construction dispute resolution, including claims involving breach of contract, construction defects, design defects, schedule-and-impact delays, mechanic’s liens, surety bonds and insurance, and counsels clients in all matters concerning cyber security and data privacy. His practice encompasses dispute resolution through mediation, arbitration and, when necessary, litigation. Mr. Volack also counsels clients on litigation avoidance practices, risk management, project planning and contract negotiation in relation to construction projects, both in both domestic and international settings. He is a frequent lecturer on construction insurance, risk management, the New York Mechanic’s Lien Law, and e-discovery and ESI issues as they relate to construction litigation, among other topics.

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Description

Parties to a construction contract rely on indemnification provisions to allocate risk and liability for injuries and other losses during a project. Often these provisions contain the phrase "defend, indemnify, and hold harmless" which are often mistakenly believed to be interchangeable terms and, therefore, included as boilerplate language in project agreements. However, each of these terms has nuanced meanings and distinct obligations and may vary based on jurisdiction. Counsel should understand these variations to best protect their clients during the negotiation and drafting process.

For example, the concept of indemnification imposes an obligation on the indemnitor to pay or reimburse the indemnitee for covered losses when an actual loss or liability has occurred. Whereas the duty to defend arises as soon as a claim is filed against an indemnitee and involves a responsibility to reimburse or advance costs related to a third-party claim, and possibly a right for the indemnitor to assume control of the defense.

The concept of hold harmless may also include duties beyond simple indemnification. Although the majority of states consider "hold harmless" and "indemnify" to be synonymous, a minority of states view "hold harmless" as an obligation to pay both actual losses and potential liabilities while "indemnify" protects against actual losses only.

Listen as our expert panel discusses key differences between these terms commonly used to allocate risk in construction contracts and how they may vary based on jurisdiction. The panel will examine the interplay with insurance and how it may affect the terms. The panel will also provide best practices for drafting and pitfalls to avoid.

Outline

  1. Introduction: risk allocation in construction contracts
  2. Defend, indemnify, and hold harmless
    • Nuanced definitions
    • Distinct obligations
    • Jurisdictional differences: notable case law and statutes
  3. Interplay with insurance
  4. Best practices for drafting

Benefits

The panel will review these and other important considerations:

  • What are notable jurisdictional differences related to the interpretation of the terms defend, indemnify, and hold harmless and their resulting obligations?
  • What risks arise when using defend, indemnify, and hold harmless as boilerplate language without considering jurisdictional differences?
  • What is the interplay between each of these terms and insurance coverage?
  • What are best practices for drafting risk allocation terms in construction contracts?