House File 253 - Introduced



                                       HOUSE FILE       
                                       BY  QUIRK


    Passed House, Date               Passed Senate,  Date             
    Vote:  Ayes        Nays           Vote:  Ayes        Nays         
                 Approved                            

                                      A BILL FOR

  1 An Act relating to indemnity provisions in construction
  2    contracts.
  3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
  4 TLSB 1584HH 83
  5 ak/rj/5

PAG LIN



  1  1    Section 1.  NEW SECTION.  537A.5  INDEMNITY AGREEMENTS ==
  1  2 CONSTRUCTION CONTRACTS.
  1  3    1.  As used in this section:
  1  4    a.  "Construction contract" means a public, private,
  1  5 foreign, or domestic contract or agreement relating to the
  1  6 construction, alteration, repair, or maintenance of any real
  1  7 property in this state and includes agreements for
  1  8 architectural services, demolition, design services,
  1  9 development, engineering services, excavation, or other
  1 10 improvement relating to real property, including buildings,
  1 11 shafts, wells, and structures, whether on, above, or
  1 12 underground.
  1 13    b.  "Indemnify" or "hold harmless" includes any requirement
  1 14 to name the indemnified party as an additional insured in the
  1 15 indemnitor's insurance coverage.
  1 16    c.  "Lower=tier party" means a party to the contract that
  1 17 acts as a subcontractor, specialty contractor, or supplier.
  1 18    d.  "Upper=tier party" means a party to the contract that
  1 19 acts as a general contractor.
  1 20    2.  A provision in a construction contract that requires
  1 21 one party to the contract to indemnify, hold harmless, insure,
  1 22 or defend the other party to the contract, including the other
  1 23 party's officers, employees, or agents, against liability,
  1 24 claims, damages, losses, or expenses, including attorney fees,
  1 25 arising out of bodily injury to persons or damage to property
  1 26 caused by or resulting from, in whole or in part, the
  1 27 negligence, act, or omission of the indemnitee or the
  1 28 officers, employees, or agents of the indemnitee, is void and
  1 29 unenforceable as against the public policy of this state.
  1 30    3.  A construction contract may contain a provision and
  1 31 shall be enforced only to the extent that the provision
  1 32 requires either of the following:
  1 33    a.  One party to the contract to indemnify, hold harmless,
  1 34 or insure the other party to the contract, including the other
  1 35 party's officers, employees, or agents, against liability,
  2  1 claims, damages, losses, or expenses, including attorney fees,
  2  2 only to the extent that the liability, claims, damages,
  2  3 losses, or expenses are caused by, or arise out of, the acts
  2  4 or omissions of the indemnitor or the officers, employees, or
  2  5 agents of the indemnitor.
  2  6    b.  A party to the contract to purchase a project=specific
  2  7 insurance policy, including an owner's or contractor's
  2  8 protective insurance, project management protective liability
  2  9 insurance, or builder's risk insurance.
  2 10    4.  This section does not apply to the indemnity of a
  2 11 surety by a principal on any surety bond or to an insurer's
  2 12 obligation to its insureds.
  2 13    5.  If an upper=tier party to a construction contract is
  2 14 named as an additional insured or additionally named insured
  2 15 on a commercial general liability or similar liability policy
  2 16 of insurance of a lower=tier party to a construction contract,
  2 17 the coverage to the upper=tier party shall be limited to the
  2 18 cost of defense and vicarious liability, and the policy shall
  2 19 not extend coverage for the upper=tier party's own negligence,
  2 20 whether sole or partial.
  2 21    6.  If a court action or other binding dispute resolution
  2 22 proceeding is brought or initiated against an upper=tier party
  2 23 for personal injury by an employee of a lower=tier party to a
  2 24 construction contract, and it is ultimately determined that
  2 25 the upper=tier party to the construction contract has no
  2 26 liability to the employee other than vicarious liability, the
  2 27 upper=tier party has a claim of indemnity for all costs,
  2 28 including costs of experts and attorney fees, associated with
  2 29 defending such action against any party in the contractual
  2 30 chain determined to have any liability for the personal
  2 31 injury.  Any liability of the employee for the employee's own
  2 32 personal injury shall be attributed to the employee's employer
  2 33 for purposes of this subsection.  This indemnification
  2 34 obligation shall be joint and several among the parties found
  2 35 liable for the personal injury.
  3  1                           EXPLANATION
  3  2    This bill relates to the use of indemnity provisions in
  3  3 construction contracts.  The bill prohibits the use of a
  3  4 provision in a construction contract that requires one party
  3  5 of the contract to indemnify or hold harmless the other party
  3  6 to the contract for damages arising out of the negligence,
  3  7 act, or omission of the indemnitee or the officers, employees,
  3  8 or agents of the indemnitee as void and unenforceable as
  3  9 against public policy.
  3 10    The bill provides that a construction contract may either
  3 11 contain a provision requiring a party to the contract to
  3 12 purchase a project=specific insurance policy, or a provision
  3 13 that requires one party of the contract to indemnify or hold
  3 14 harmless the other party to the contract for damages arising
  3 15 out of the negligence, act, or omission of the indemnitor or
  3 16 the officers, employees, or agents of the indemnitor.  The
  3 17 bill does not apply to the indemnity of a surety by a
  3 18 principal on a surety bond.
  3 19    The bill provides that if an upper=tier party to a
  3 20 construction contract is named as an additional insured on a
  3 21 liability policy of a lower=tier party to a construction
  3 22 contract, the coverage of the policy to the upper=tier party
  3 23 shall be limited to the cost of defense and vicarious
  3 24 liability and not to the upper=tier party's own negligence.
  3 25    The bill also provides that if a court action or binding
  3 26 dispute proceeding is brought by an employee of a lower=tier
  3 27 party against an upper=tier party to a construction contract
  3 28 and the upper=tier party is found to be without liability
  3 29 other than vicarious liability, the upper=tier party shall
  3 30 have a claim of indemnity for all costs of the court action or
  3 31 dispute resolution proceeding.
  3 32    The bill provides definitions of the terms "construction
  3 33 contract", "indemnify" or "hold harmless", "lower=tier party",
  3 34 and "upper=tier party".
  3 35 LSB 1584HH 83
  4  1 ak/rj/5