CLIENT ADVISORY: D.C. Enacts Anti-Indemnity Statute, Prohibiting Indemnity and Additional Insured Provisions in Construction Contracts that Require a Subcontractor to Indemnify a Contractor for the Contractor’s Sole Negligence

The D.C. Council enacted legislation that declares void indemnification clauses in construction contracts that require a subcontractor to indemnify or hold harmless a contractor for a contractor’s sole negligence.  This law only applies to contracts executed on or after April 1, 2023.  The new law also prohibits contractors from requiring their subcontractors to purchase additional insured coverage or endorsements providing for additional insured coverage that covers the sole negligence of the contractor.

The new statute is found at D.C. Code § 27A-202.  With this change, D.C. law is now similar to Maryland’s law on this topic, found at Md. Code, Courts & Judicial Proceedings Article § 5-401.  The Maryland law also prohibits indemnification clauses in construction contracts that require subcontractors to indemnify and hold harmless contractors for the contractor’s sole negligence.  D.C.’s law, however, goes further than Maryland’s in that the D.C. law also prohibits provisions that require subcontractors to purchase additional insured endorsements that cover sole negligence of contractors.

Before this enactment, D.C. Courts had held that contracts written broadly enough to contemplate indemnification for a contractor’s sole negligence were enforceable.  See, e.g., N.P.P. Constr. v. John Canning & Co., 715 A.2d 139, 142 (D.C. Ct. App. 1998); W.M. Schlosser Co. v. Maryland Drywall, 673 A.2d 647, 653 (D.C. Ct. App. 1996).  This new law supersedes that common law for construction contracts entered into after April 1, 2023.

Questions about this development can be directed to Matt Ainsley at (202)-945-9506 or mainsley@tthlaw.com.