yet another party for certain losses, the original indemnitor A will be required to not (“C”) indemnify the original indemnitee B for its obligation to indemnify C unless the indemnification provision between A and B contained express language providing coverage for, or “passing contractual liabilities to third parties. through,” B’s In the Fifth Circuit analyzed a contractual indemnity Sumrall v. Ensco Offshore Co., provision that included language specifying the intent to indemnify the indemnitee indemnitor’s for obligations arising in or and further included language that “whether … tort” “contract” broadened the scope of indemnity to include claims of whatsoever nature or character “all … … whether or not caused by the legal of the indemnitee. The Fifth Circuit held that, based … duty” upon the specific inclusion of claims and the use of broad language covering claims “contract” whatsoever the indemnity provision required indemnification for the “of nature,” indemnitee’s contractual obligations. In however, the Fifth Circuit determined that the indemnity Foreman v. Exxon Corp., provision at issue contemplated indemnification only for demands and causes of “all claims, action in any way resulting from the willful or for injury to or death or illness of persons … … negligence acts or omissions of Contractor Thus, because the indemnity language at issue ….” failed to make specific reference to contractual indemnity obligations, no such Contractor’s indemnification was provided. Gross Negligence and Punitive Damages. When viewed as a particular subset of claims for which indemnification may or may not be provided under the particular law governing the contractual indemnification provision, issues concerning indemnification for gross negligence and punitive damages are often at the forefront.
yet another party (“C”) for certain losses, the original indemnitor A will not be required to indemnify the original indemnitee B for its obligation to indemnify C unless the indemnification provision between A and B contained express language providing coverage for, or “passing through,” B’s contractual liabilities to third parties. In Sumrall v. Ensco Offshore Co., the Fifth Circuit analyzed a contractual indemnity provision that included language specifying the indemnitor’s intent to indemnify the indemnitee for obligations “whether arising in … tort” or “contract” and further included language that broadened the scope of indemnity to include “all claims … of whatsoever nature or character … whether or not caused by the … legal duty” of the indemnitee. The Fifth Circuit held that, based upon the specific inclusion of “contract” claims and the use of broad language covering claims “of whatsoever nature,” the indemnity provision required indemnification for the indemnitee’s contractual obligations. In Foreman v. Exxon Corp., however, the Fifth Circuit determined that the indemnity provision at issue contemplated indemnification only for “all claims, demands and causes of action … for injury to or death or illness of persons … in any way resulting from the willful or negligence acts or omissions of Contractor ….” Thus, because the indemnity language at issue failed to make specific reference to Contractor’s contractual indemnity obligations, no such indemnification was provided. Gross Negligence and Punitive Damages. When viewed as a particular subset of claims for which indemnification may or may not be provided under the particular law governing the contractual indemnification provision, issues concerning indemnification for gross negligence and punitive damages are often at the forefront.
FINAL%20-%20Indemnity%20Provisions%20in%20Energy%20Agreements.docx