Derr Construction Co. v. City of Houston
846 S.W.2d 854 | Court of Appeals of Texas | 1992
What This Case Means for Subcontractors
A crane operated by Derr Construction fell into a hidden underground cavity on a Houston convention center project, causing significant damage. Derr sued the general contractor and project owner for negligence and breach of contract, seeking damages beyond insurance coverage. The court enforced a broad indemnity clause in Derr's subcontract that required Derr to release and indemnify the contractor and owner, barring all claims even though Derr had negotiated modifications to the indemnity language. This case shows that even negotiated changes to indemnity clauses may not protect you if the overall release and indemnity language remains broad.
Key Takeaways
- •Broad indemnity and release clauses in your subcontract can bar you from suing the general contractor or owner for their negligence, even if you negotiated modifications to specific indemnity language.
- •Negotiating changes to an indemnity clause does not necessarily eliminate the clause's enforceability—courts will look at the overall language and intent of the entire provision.
- •Review indemnity clauses carefully before signing; focus on whether you're required to indemnify for the other party's own negligence, not just your own work defects.
The provision clearly states that Derr is to be responsible for its work and release and indemnify the appellees.
Frequently Asked Question
If I negotiate changes to an indemnity clause in my subcontract, does that protect me from having to indemnify the general contractor?
Not necessarily. Courts will look at the overall language of the entire indemnity and release provision, not just the parts you negotiated. Even if you modify specific indemnity language, a broad release clause can still bar your claims against the contractor and owner. Always have an attorney review the complete indemnity section before signing, and specifically negotiate to exclude indemnity for the other party's sole or comparative negligence.
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