Indemnification Generally
An indemnity agreement provides that one party to the agreement will reimburse the other for loss or injury that the party may suffer because of a specified event or that one party will protect the other from harm or loss.[1] Construction indemnity agreements are a promise by which one party (the indemnitor) agrees to defend, indemnify, or hold harmless another party (the indemnitee) for acts or omissions relating to a construction project.[2]
The general principles applicable to the construction and interpretation of contracts are equally applicable to contracts of indemnity. Thus, an indemnity clause should be interpreted to give effect to its primary purpose and be read in conjunction with the other provisions of a contract. The words of an indemnity agreement are to be construed in their grammatical and ordinary sense and not to impose a liability that cannot be implied from the express language used.[3] So, a court will not extend the words of an indemnification clause beyond the scope of its plain meaning and intent.
The right to indemnity generally springs from a contract, express or implied. So, in the absence of an express contractual provision for indemnification, an implied right of indemnification, or common law indemnification, can still be found. In such case, the indemnity obligation is implied based upon the law’s notion of what is fair and proper as between the parties.[4]
Examples:
- In Keller v. Rippowam Cisqua School, a contract between a general contractor and a subcontractor for a construction project at an elementary school provided indemnification for injuries arising out of the subcontractor’s performance of work under the contract caused, in whole or part, by the acts and omissions of the subcontractor. Thus, the general contractor and the school could pursue a third-party cause of action for contractual indemnification against the subcontractor, in an action brought by the construction worker, who fell from a ladder while working on a job site at the school, against the general contractor and school. The subcontractor failed to establish that the worker’s alleged injuries were not caused by a ladder that the subcontractor owned or furnished or that the worker’s accident did not arise out of the subcontractor’s work.[5]
- In Tavarez v. LIC Development Owner, L.P., an indemnification clause in a contract between the property manager, acting as agent for the property development owner, and the cleaning service company did not apply to the property development owner, and thus the cleaning service was not required to indemnify the property development owner in the cleaning service employee’s personal injury action against the property development owner. The indemnification provision stated that the cleaning service company shall hold harmless the owner’s agent from all claims by the tenant or others, the owner’s agent was designated as the property manager, and the property development owner was neither identified nor included under the indemnification provision.[6]
- In Konrad Developers, LLC v. Holbrook Heating, Inc., an action by homeowners against the contractor for breach of a construction contract, the fact that the claim extended to work on the residence not performed by the subcontractor did not impair the contractor’s right to seek indemnification on the portion of the claim relating to heating, air conditioning and hot water system installed by the subcontractor.[7]
Common Law Indemnification vs. Contractual Indemnification
Common Law Indemnification
Common-law indemnity, or indemnity implied by law, is a restitution concept that permits shifting the loss because failing to do so would result in the unjust enrichment of one party at the expense of the other. The key element of common-law indemnification is the concept that every person is accountable for the consequences of his or her own negligence.
Common-law indemnity typically covers loss or damage and not mere liability.[8] A cause of action for common-law indemnity does not accrue until actual payment of the judgment recovered against the person entitled to indemnity. So, the mere pendency of the underlying action against a party is not sufficient as a finding of common-law indemnity. Rather, such finding would be premature prior to a determination of whether a party’s negligence contributed to the accident.
Examples:
- The Court in Morris v. Home Depot USA explained that common-law indemnification involves an attempt to shift the entire loss from one who is compelled to pay for a loss, without regard to his own fault, to another person who should more properly bear responsibility for that loss.[9]
- In Board of Education of Palmyra-Macedon Central School District v. Flower City Glass Co., Inc., the Court said that the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee. Further, a party who has itself participated to some degree in the wrongdoing cannot receive the benefit of the doctrine.[10]
- In Fla. Peninsula Ins. Co. v. Ken Mullen Plumbing, Inc., the Court held that a claim for common law indemnity is one that “shifts the entire loss from one who, although without active negligence or fault, has been obligated to pay, because of some vicarious, constructive, derivative, or technical liability, to another who should bear the costs because it was the latter’s wrongdoing for which the former is held liable.” [11]
- In Tank Tech, Inc. v. Valley Tank Testing, L.L.C., the Court held, for a party to prevail on a claim of common law indemnity, the party must satisfy a two-prong test. “First, the party seeking indemnification must be without fault, and its liability must be vicarious and solely for the wrong of another. Second, indemnification can only come from a party who was at fault. Additionally, Florida courts have required a special relationship between the parties for common law indemnification to exist.” [12]
Contractual Indemnification
A contract assuming an obligation to indemnify when a party is under no legal duty to do so must be strictly construed to avoid reading into it a duty that the parties did not intend to be assumed.[13] The right to contractual indemnification depends upon the specific language of the contract.[14] When an indemnity obligation is expressly provided for in a contract, the question of whether it covers an underlying liability turns on interpretation or, the intent of the parties. Pursuant to standard contract principles, the intent of the parties is to be ascertained from the “clear and explicit language of the contract,” as well as “the circumstances of the damage or injury,” and “with reference to the situation of the parties when they made it and to the objects sought to be accomplished.” [15] In the event of any ambiguity or uncertainty regarding the language used, the indemnity contract is to be construed strictly with any such ambiguity or uncertainty resolved against the party responsible for drawing the contract.
Contractual indemnities can be rendered void and unenforceable under an applicable anti-indemnity statute. Many states have enacted statutes that invalidate agreements in construction contracts that attempt to indemnify persons against the consequences of their own negligence, as being contrary to public policy. These statutes are generally justified on two grounds: first, courts have reasoned that allowing such persons to be free from the consequences of their own negligence reduces their incentive to operate or supervise a worksite that is safe for workers and the general public, and second, such statutes are believed to combat overreaching in the construction industry, wherein small contractors and suppliers may be powerless to negotiate a truly fair allocation of risks.[16] Further, courts have upheld that a contractual duty to indemnify, similar to common law principles, does not arise until liability is proven.[17]
Examples:
- In Khan v. 40 Wall Limited Partnership, the patron’s accident when she fell due to unexpected movement of elevator located in building arose out of or was related to performance of the elevator servicer’s work, and thus the building owners were entitled to indemnification by the elevator servicer in the patron’s action to recover damages. The contract between the elevator servicer and the building owners required the servicer to indemnify the building owners for any and all liability, including legal costs and expenses, happening in or arising out of or in any way relating to performance of the servicer’s work or services performed under the contract, and the elevator’s unexpected movement caused the patron to fall and allegedly sustain injuries.[18]
- In Yang v. City of New York, the indemnification provision in the contract between the contractor and the subcontractor that installed a fire alarm and fire prevention system was enforceable under the statute, providing that agreements exempting owners and contractors from liability for negligence were void and unenforceable. Thus, the contractor was entitled to contractual indemnification for the damages to the injured worker that were not attributable to its own negligence, where the provision did not purport to indemnify the contractor for its own negligence. [19]
- In Vitucci v. Durst Pyramid LLC the lessee and the contractor were entitled to contractual indemnification from the subcontractor for claims arising out of an accident in which the plaintiff was injured and to the extent the accident was not caused by the lessee’s or the contractor’s own negligence. The plaintiff alleged that the subcontractor’s negligent installation or maintenance of lighting contributed to the accident. The subcontract required the subcontractor to indemnify the lessee and the contractor for any claims that may arise out of or be connected with the subcontractor’s performance of work unless caused in whole or in part by indemnitee’s own negligence.[20]
- In Queen Villas Homeowners Assn. v. TCB Prop. Mgmt.,the homeowner’s association brought a breach of contract action against the property manager that had paid the association’s board member from the association’s funds for her services helping the homeowners with their construction defect cases, thereby allegedly allowing the board member to embezzle. Here, the management company seeks to conscript the indemnification agreement in this case into a direct, two-party exculpatory clause. In the document, there are no indicia in terms of the “commercial reality” or the “benefit of the bargain” received by the defendant that would require a court to interpret the words “indemnify” or “hold harmless” here beyond the usual context of third-party indemnification.[21]
What is Indemnification? What is it not?
Indemnity differs from guaranty, suretyship, or insurance, in that a contract of suretyship or guaranty is collateral to some other contract or transaction, and insurance is an indemnity contract, but on terms and conditions specified in a policy.
Indemnification vs. Promise to Pay/Guaranty of Payment
A distinction is to be drawn between an obligation to pay, such as a contract to pay an indebtedness, and a contract of indemnity against loss or damage, in that a cause of action accrues on the former as soon as there is a breach, while in the case of the latter no cause of action accrues until the indemnitee has suffered a loss against which the covenant runs. Moreover, an agreement to pay is enforceable according to its terms and is not restricted by any agreement to indemnify against loss caused by a failure to comply with the agreement to pay.[22]
A guaranty of payment is distinguishable from a contract of indemnity in that, under the former, the liability of the guarantor to the creditor attaches immediately upon default in payment by the principal while a contract of indemnity runs not to the creditor but to a third person who is or will become a debtor upon the imposition of a contingent liability. Indemnification is a primary obligation, and if a loss or event occurs within its scope, the indemnitor is primarily liable, whereas a guaranty is a contract of secondary liability, and the guarantor will be required to make payment only when the primary obligor has first defaulted.[23]
Indemnification vs. Contribution
There is a fundamental distinction between contribution and indemnification, in that contribution is not founded upon, nor does it necessarily arise from, contract, and only a ratable or proportional reimbursement is sought. The right of indemnity, on the other hand, generally springs from a contract, express or implied, and full, not partial, reimbursement is sought. Thus, where one is held liable solely on account of the fault of another, the principles of indemnification, not contribution, apply to shift the entire liability to the wrongdoer.[24]
One who is entitled to indemnity but who asks only for contribution is not seeking his or her full remedy and cannot be defeated for asking for less than what he or she is entitled to; but he or she can be precluded from splitting his or her cause of action. In other words, it is entirely proper to demand both indemnity and contribution in the same action, upon the theory that if one is not entitled to the greater, he or she is at least entitled to the lesser, but having asked for and received the lesser, he or she cannot come back later and sue for the balance to make up the greater, as piecemeal recoveries are not allowed.
Indemnification vs. Subrogation
The principal basis for distinguishing indemnity from subrogation is that in indemnity, an obligor ordinarily discharges his or her own obligation to an obligee and seeks to be compensated by a third party who is under an express or implied obligation to reimburse the obligor, whereas in subrogation, a third party discharges an obligor’s obligation to the obligee and then seeks the right to stand in the obligee’s position so as to be able to assert the obligee’s former rights against the obligor. Thus, subrogation is the right one party has against a third-party following payment, in whole or in part, of a legal obligation that ought to have been met by the third party.
Examples:
- In Tank Tech, Inc. v. Valley Tank Testing, L.L.C., the Court held, “subrogation provides an equitable remedy for restitution to one who in the performance of some duty has discharged a legal obligation which should have been met, either wholly or partially, by another.”[25] “Legal subrogation … is a creature of equity that does not depend on the contract, but which follows as a legal consequence of the acts and relationship of the parties.”[26] “The doctrine places ‘one party into the shoes of another so that the substituting party retains the rights, remedies, or securities that would otherwise belong to the original party.’ ”[27]
- In Dade Cty. Sch. Bd. v. Radio Station WQBA the Court distinguished indemnification from equitable subrogation where: (1) the subrogee made the payment to protect [its] own interest, (2) the subrogee did not act as a volunteer, (3) the subrogee was not primarily liable for the debt, (4) the subrogee paid off the entire debt, and (5) subrogation would not work any injustice to the rights of a third party.[28]
Indemnification vs. Insurance
Indemnity provisions are the most prevalent means of risk transfer in the construction industry and are found in almost every agreement. They involve a promise by one party to protect another party from claims for damages by a third party. In a construction setting, indemnity demands most often result from an injury on the construction site that results in a third-party claim. Insurance is the primary third-party risk transfer mechanism used in construction. While the parties’ contract is the primary vehicle for allocating risks and defining rights and responsibilities, insurance plays a pivotal role in covering certain potential losses that no party can comfortably bear alone.
Most construction contracts require the parties to obtain various types of insurance coverage.[29] Insurance clauses spell out the type and amount of insurance and other insurance-related obligations required by the various parties entering into the contract. Further, because they are separate provisions and absent any terms of incorporation, the indemnity clause does not determine the scope of insurance coverage, and the policy does not determine the scope of indemnity coverage.
Examples:
- In Uniwest Const., Inc. v. Amtech Elevator Services, Inc., the Court considered whether the subcontractor had a contractual duty to defend and indemnify the contractor in an action brought by an injured employee and the estate of a deceased employee of the subcontractor. The employees brought an action against the contractor, then the contractor and its insurers brought an action against the subcontractor and its insurers, alleging that the subcontractor breached its contractual duty to defend and indemnify the contractor in employees’ action. The Court determined that the defense and indemnification provision in the subcontract was void because it violated public policy pursuant to Code § 11-4.1. So, the subcontractor was not liable to the contractor, but the Court determined that the subcontractor had a duty to obtain insurance for the contractor, which he failed to do.[30] Thus, the subcontract did incorporate the defense and indemnification provision and the Court held that it imposed a duty to defend and indemnify the contractor.
- According to Kinney v. G.W. Lisk Co., Inc., an agreement to procure insurance is not an agreement to indemnify or hold harmless, and the distinction between the two is well recognized.[31] Whereas the essence of an indemnification agreement is to relieve the promisee of liability, an agreement to procure insurance specifically anticipates the promisee’s “continued responsibility” for its negligence for which the promisor is obligated to furnish insurance.[32] Moreover, this particular distinction renders indemnification, but not insurance-procurement, agreements violative of the public policies underlying General Obligations Law § 5–322.1. While an agreement to hold an owner or a general contractor free from liability for its negligence undermines the strong public policy of the responsibility for maintaining a safe workplace on those parties, the same cannot be said for an agreement that obligates one of the parties to a construction contract to obtain a liability policy insuring the other. The Court held that because the subcontractor breached its agreement to procure liability insurance covering the contractor, it is liable for the resulting damages, including the contractor’s liability to the plaintiff.
- In Cavanaugh v. 4518 Associates, the plaintiff was working as a taper for a sub-subcontractor on a building renovation when the scaffold on which he was working shifted, causing him to fall forward into a dumpster.[33] The Court found that the indemnification provision and the insurance procurement provision have separate functions: “an indemnification clause relieves the promisee of liability” and “an agreement to procure insurance anticipates that the promisee will continue to be responsible for its own negligence for which the promisor is obligated to furnish insurance.” An indemnification agreement relieving a party of liability for its own negligence is against public policy and void under the anti-indemnification statute, while an insurance procurement provision is not against public policy because a party is still technically responsible for its own negligence.[34] Therefore, the Court held that the insurance procurement clause should not be read to validate an otherwise invalid indemnification clause.
- In Hartford Casualty Insurance Co. v. Mt. Hawley Insurance Co., the Court considered the interplay between indemnity agreements and insurance policies.[35] The plaintiff, subcontractor’s employee, sued the contractor for damages, alleging that the contractor’s negligence caused his injuries. The subcontractor’s insurance company provided a defense and settled the case with its own funds. The subcontractor’s insurer then filed suit against the contractor’s insurer, seeking payment of one-half of the expenses incurred in the defense and settlement of the case. The subcontractor’s insurer argued that the terms of their insurance contract requiring proration in case of “other insurance” should control instead of the indemnification clause between the contractor and the subcontractor. The court rejected this argument, stating that apportioning the loss in the case under the “other insurance” clause would negate the bargained-for indemnity agreement between the prime and the sub.[36] Thus, the indemnity provision controlled which precluded the subcontractor’s insurer from collecting from the contractor’s insurer.
- In Walsh Construction Co. v. Mutual of Enumclaw, the Court concluded that a subcontract provision requiring the subcontractor to procure additional insured coverage for the contractor violated Oregon’s anti-indemnity law.[37] The Court determined that the statute was designed to prevent parties with greater leverage in construction agreements from shifting exposure for their negligence to other parties, so they did not find the distinction between insurance and indemnification persuasive. In this case, whether the shifting of this risk was accomplished by requiring the subcontractor to indemnify the contractor for damages caused by the contractor’s negligence or indirectly through the procurement of additional insured coverage, the result is the same, “an improper shifting of risk under Oregon law.”[38]
Other Considerations
Fee Shifting Provisions
Fee shifting provisions can provide a basis for the recovery of attorneys’ fees from the other party. These provisions in a contract are often found in the indemnification section, in their own stand-alone section or both. You should always review the contract thoroughly to identify and evaluate any fee-shifting provisions. These provisions often sway negotiations during litigation.
Know The Basis for Recovering Attorneys’ Fees
Whether a party may recover attorneys’ fees largely turns on the relationship of the parties or the nature of the litigation. The general rule for recovering attorneys’ fees in the United States is the American Rule, which states that a party pays for its own attorneys’ fees and costs absent a contractual or statutory provision to the contrary. In addition to fee-shifting provisions in both state and federal statutes, litigants will often find fee-shifting provisions as a contractual clause, as part of an indemnification clause or both. As a somewhat tangential matter, individuals and entities should take care to review fee-shifting clauses in contracts they sign as well as consider whether to include a fee-shifting clause in their own contracts. Some states prohibit one-sided fee-shifting provisions.
- Contractual and Statutory Fee-Shifting Provisions
Fee-shifting provisions found in contracts or in various statutes often contain some common elements. First, the provision is likely to be mandatory or discretionary. This distinction is important, especially to the cost-benefit analysis often done in preparation for settlement, because a mandatory fee-shifting provision gives a plaintiff stronger bargaining power. In contracts, the provisions are generally mandatory, and often provide that a certain party is “entitled” to recover reasonable attorney’s fees and costs in connection with its breach of contract action. Statutes may use mandatory language like “the court shall award” attorneys’ fees and costs or discretionary language like “a court in its discretion may award attorneys’ fees.”[39] Be careful to ascertain the nature of your attorneys’ fees provision early on.
The second common part of a fee-shifting provision deals with the recipient of attorneys’ fees. Fee-shifting provisions benefit either the prevailing plaintiff alone or the prevailing party, no matter the outcome. Statutes may give courts the authority to award attorneys’ fees to a prevailing defendant, especially in cases of frivolous litigation. However, a fee-shifting provision that benefits one side regardless of whether that side prevails is unconscionable and unenforceable.[40] Thus, the first step in an attorneys’ fee award analysis is to determine if there is a fee-shifting provision at play, and if so, whether the provision is mandatory or discretionary along with who the provision benefits.
Timely Petition for Recovery
- Federal Court
Pursuant to the Federal Rules of Civil Procedure, Rule 54, the proper method to petition to recover attorneys’ fees and costs is with a motion. The claim “must be made by motion” unless the underlying statute provides otherwise. The motion “must: (1) be filed no later than 14 days after the entry of judgment; (2) specify the judgment and the statute, rule, or other grounds entitling the movant to the award; (3) state the amount sought or provide a fair estimate of it; and (4) disclose, if the court so orders, the terms of any agreement about fees for the services for which the claim is made.” It is important to keep these dates in mind and prepare as much material ahead of time to be able to submit a timely motion.
- State Court
States differ on whether a litigant has to make the claim for attorneys’ fees in its initial pleadings, whether the attorneys’ fees claim can be or should be bifurcated and on the process for bringing a claim.
Whether in federal or state court, the fee petition should include with it (1) Copies of all bills; (2) Affidavits from one or two attorneys involved attesting to the reasonableness of the hourly rates and the hours expended, the motions worked on, the complexity of the case, and the reasonableness of the overall request; and (3) Affidavits from at least two attorneys who practice in the area where the presiding court sits, attesting to the prevailing market rate and the reasonableness of each attorney’s rate and hours expended
Bifurcation or Stay of Attorneys’ Fees Issues
Given the fact that attorneys’ fees cannot be awarded until the underlying case is decided, a party or both parties may wish to bifurcate the trial and/or stay discovery as to the attorneys’ fees issue. In federal court, the motion for attorneys’ fees need not even be made until the trial has concluded, so a judge may stay discovery on the issue of attorneys’ fees rather than bifurcate the trial. Rule 42(b) of the Federal Rules of Civil Procedure, the rule concerning bifurcation, states in pertinent part, “[f]or convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more issues.”[41]
Bill With the End in Mind: Calculating the Amount of the Attorneys’ Fees and Costs Award
- The Standard
Federal courts generally use a three-step process for determining the fees and costs award. The court must first “determine the lodestar figure by multiplying the number of reasonable hours expended times a reasonable rate.”[42] Second, the court subtracts fees for hours spent on unsuccessful claims, and third, the court awards “some percentage of the remaining amount, depending on the degree of success enjoyed by the plaintiff.”[43] Most states follow a similar framework.
- The Lodestar
- Reasonable hourly rate
A party can only recover attorneys’ fees billed at a reasonable rate. The “fee applicant bears the burden of establishing the reasonableness” of each attorney’s rate by showing that it is “consistent with the prevailing market rates in the relevant community for the type of work” performed.[44] The prevailing market is the market “in which the court where the action is prosecuted sits.”[45]
In the rare case where a case is litigated for some time in one jurisdiction before being transferred to another, the fee applicants should be prepared to present evidence of the prevailing rates in both applicable jurisdictions for the work done in each locale. In Schwarz v. Sec’y of Health & Human Servs., the Ninth Circuit Court of Appeals considered how to calculate attorney’s fees when the case was transferred to Portland after two years of extensive discovery that occurred while the case was pending in Phoenix.[46] In that case, the district court award fees on the plaintiff’s successful claim based on the hours spent and the “going rate in Phoenix and Portland.”[47] The appellate court affirmed the decision.[48] The Court agreed with the trial judge that the reasonable hourly rate should be calculated by the prevailing rate where the district courts sat, both in Phoenix and Portland during the relevant portions of the litigation.[49]
As additional factors to determine the reasonableness of an attorney’s hourly rate, courts use the twelve Johnson factors, which are: (1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney’s opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney’s expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys’ fees awards in similar cases. Based on these factors, a court may adjust an attorney’s fee up or down and may make the adjustment as a bulk, percentage increase of the total fee rather than a direct increase in the hourly rate.
- Reasonable Time Expended
In addition to showing a reasonable hourly rate charged by his lawyers, the party seeking fees must also show that the time expended was reasonable. Generally, courts will reduce hours due to block billing, duplicate work, vague billing, unnecessary group meetings, non-legal work done by attorneys, travel time, and other extraneous or unnecessary hours spent on legal work.[50]
- Subtract Fees for Hours Spent on Unsuccessful Claims
After a federal court determines the lodestar figure, it will then subtract fees spent on unsuccessful claims.[51] The Middle District of North Carolina has a moderate approach to this step. In Fisher-Borne v. Smith, the court noted that while Plaintiff’s counsel was unsuccessful in “securing the preliminary injunctions and at opposing the stays,” the time expended performing such work – briefing and arguing motions – was reasonable.[52] However, the court will exclude fees that are spent on unsuccessful claims that are unrelated to the successful claims. Id.
- Percentage Based on Overall Success
Finally, the court will take into consideration the degree of success enjoyed. This analysis considers whether the reduction of an award is warranted based on limited results obtained compared to the overall litigation.[53] The court first compares the amount of damages sought to the amount awarded.[54] However, the fact that a plaintiff did not recover as much as he expected does not automatically trigger a reduction in fees.[55] The question is whether the plaintiff’s degree of success warrants the amount of the fees claimed.[56] This factor is the “most critical” factor in determining a fee award, but it lies wholly in the discretion of the court.[57]
State Law Considerations
Enclosed with these materials is a 50-state overview of anti-indemnification provisions and recent and/or key cases involving indemnification. Nearly every state has some kind of anti-indemnification statute, but Maine, Vermont and Alabama do not. It is vital that you know which state’s law applies to the contract. This is usually the location of the project, but review the contract carefully for any other applicable law clauses. Generally speaking, courts will not enforce indemnification provisions that run afoul of the law.
[1] 9B Am. Jur. Legal Forms 2d § 142:1
[2] 23 N.Y. Jur. 2d Contribution, Etc. § 75
[3] Id.
[4] 23 N.Y. Jur. 2d Contribution, Etc. § 4; 23
[5] Keller v. Rippowam Cisqua School, 208 A.D.3d 654, 174 N.Y.S.3d 79 (2d Dep’t 2022)
[6] Tavarez v. LIC Development Owner, L.P., 205 A.D.3d 565, 169 N.Y.S.3d 266 (1st Dep’t 2022)
[7] Konrad Developers, LLC v. Holbrook Heating, Inc., 158 A.D.3d 1202, 70 N.Y.S.3d 274 (4th Dep’t 2018)
[8] 23 N.Y. Jur. 2d Contribution, Etc. § 3
[9] Morris v. Home Depot USA, 152 A.D.3d 669, 59 N.Y.S.3d 92 (2d Dep’t 2017)
[10] Board of Education of Palmyra-Macedon Central School District v. Flower City Glass Co., Inc., 178 A.D.3d 1359, 117 N.Y.S.3d 388 (4th Dep’t 2019)
[11] Fla. Peninsula Ins. Co. v. Ken Mullen Plumbing, Inc., 171 So. 3d 194 (Fla. 5th Dist. App. 2015)
[12] Tank Tech, Inc. v. Valley Tank Testing, L.L.C., 244 So. 3d 383 (Fla. 2d Dist. App. 2018)
[13] 23 N.Y. Jur. 2d Contribution, Etc. § 4; 23
[14] Tanksley v. LCO Building LLC, 196 A.D.3d 1037, 151 N.Y.S.3d 293 (4th Dep’t 2021)
[15] Id.
[16] Steven G.M. Stein, Shorge K. Sato, Advanced Analysis of Contract Risk-Shifting Provisions: Is Indemnity Still Relevant?, 27 Constr. Law. 5 (Fall 2007)
[17] Aluma Sys. Concrete Constr. of California v. Nibbi Bros. Inc., 2 Cal. App. 5th 620, 206 Cal. Rptr. 3d 394 (2016)
[18] Khan v. 40 Wall Limited Partnership, 205 A.D.3d 789, 169 N.Y.S.3d 107 (2d Dep’t 2022)
[19] N.Y. General Obligations Law § 5-322.1. Yang v. City of New York, 207 A.D.3d 791, 173 N.Y.S.3d 36 (2d Dep’t 2022).
[20] Vitucci v. Durst Pyramid LLC, 205 A.D.3d 441, 168 N.Y.S.3d 45 (1st Dep’t 2022).
[21] Queen Villas Homeowners Assn. v. TCB Prop. Mgmt., 149 Cal. App. 4th 1, 56 Cal. Rptr. 3d 528 (2007)
[22] 23 N.Y. Jur. 2d Contribution, Etc. § 10
[23] Id.
[24] 23 N.Y. Jur. 2d Contribution, Etc. § 8
[25] W. Am. Ins. Co. v. Yellow Cab Co. of Orlando, Inc., 495 So.2d 204, 206 (Fla. 5th DCA 1986)
[26] Id .
[27] Tank Tech, Inc. v. Valley Tank Testing, L.L.C., 244 So. 3d 383 (Fla. 2d Dist. App. 2018)
[28] Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 646 (Fla. 1999)
[29] Construction Briefings No. 2005-1
[30] Uniwest Const., Inc. v. Amtech Elevator Services, Inc., 699 S.E.2d 223 (Va. 2010), opinion withdrawn in part on reh’g, 714 S.E.2d 560 (Va. 2011)
[31] Kinney v. G.W. Lisk Co., Inc., 556 N.E.2d 1090 (N.Y. 1990)
[32] Id.
[33] Cavanaugh v. 4518 Associates, 776 N.Y.S.2d 260 (App. Div. 2004)
[34] Id.
[35] Hartford Casualty Insurance Co. v. Mt. Hawley Insurance Co., 20 Cal. Rptr. 3d 128 (App. 2004)
[36] Id.
[37] Walsh Construction Co. v. Mutual of Enumclaw, 76 P.3d 164 (Or. App. 2003)
[38] Id.
[39] See e.g. Va. Code Ann. § 16.1-378.18 (1950, as amended); Va. Code Ann. § 55-79.3(A) (1950, as amended); 42 U.S.C. § 12205; 31 U.S.C. § 3730. Lambert v. Sea Oats Condo. Ass’n, 293 Va. 245, 254 (2017).
[40] McIntosh v. Flint Hill Sch., 2018 Va. Cir. LEXIS 321 (Fairfax, Sept. 17, 2018).
[41] Fed. R. Civ. P. 42(b).
[42] See e.g. McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013) (internal citations omitted).
[43] Id.
[44] McAfee, 738 F.3d at 91.
[45] Rum Creek Sales, Inc. v. Caperton, 31 F.3d 169, 175 (4th Cir. 1994).
[46] 73 F.3d 895 (1995).
[47] Id. at 899.
[48] Id.
[49] Id.
[50] McAfee v. Boczar, 738 F.3d 81, 90 (4th Cir. 2013); Doe v. Alger, 2018 U.S. Dist. LEXIS 15365 (W.D. Va., Jan. 31, 2018); Univ. Support Servs. v. Galvin, 32 Va. Cir. 47, 55 (Fairfax Cnty. Cir. Ct., 1993).
[51] McAfee, 738 F.3d at 88.
[52] Fisher-Borne v. Smith, 2018 U.S. Dist. LEXIS 124588 at *27 (M.D.N.C. July 25, 2018) (citing Air Transp. Ass’n of Can. V. Fed. Aviation Admin., 156 F.3d 1329, 1335 (D.C. Cir. 1998) (noting that a plaintiff “who is unsuccessful at a stage of litigation that was a necessary step to her ultimate victory is entitled to attorney’s fees even for the unsuccessful stage.”))
[53] Fisher-Borne, 2018 U.S. Dist. LEXIS 124588 at *37.
[54] Randolph v. Powercomm Constr., Inc., 715 Fed. Appx. 227, 231 (4th Cir. 2017).
[55] Id.
[56] McAfee, 738 F.3d at 92.
[57] Hensley v. Eckerhart, 461 U.S. 424, 436-37 (1983).