The Court of Appeals published, Speedway Superamerica, LLC v. Erwin, which dealt with contractual indemnity and the extent to which such clauses would be enforced.  Erwin entered into a contract with Speedway to perform basic services.  He was injured while  performing his duties allegedly as a result of Speedway’s negligence.  His contract contained language that included a requirement to indemnify Speedway from any “breach of any term of his contract or any act, or omission in the performance of this contract.”  Speedway filed a counterclaim seeking indemnity from Erwin on this claim.  It was dismissed by the trial court as against public policy.

The court of appeals noted that when a party seeks to use an indemnification provision to defend against its own negligence, the indemnification provision is no different than a pre-injury release, which is disfavored under Kentucky law.  The court went on to analyze the bargaining position of the parties and ultimately agreed with prior case law, “that generally in Kentucky agreements to indemnify against the indemnitee’s own negligence are not valid and that . . . when there is a doubt as to the meaning of an indemnity clause the construction should be against the contention that the contract was meant to indemnify against an indemnitee’s own negligence.” While these provisions are not against public policy per se it was doubtful that Erwin intended to indemnify Speedway from its own negligence.

Editors Note:   There really is no need to deal with questions of public policy and voiding the contract, when it does not appear that the language relied upon by Speedway is clear enough to warrant its interpretation.  Erwin clearly agreed to indemnify Speedway from his own acts of negligence and rightfully so.  However, there is nothing in that language to suggest he intended to indemnify Speedway from its own acts of negligence.  End of story.  No need to delve into issue of public policy or conscionability.  However, if the issue is indemnification for a party’s own acts of negligence, remember that provision must be clear and conscionable.

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