Architect-Engineer's Duty to Defend Is Immediate Under Construction Indemnity Clause

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Indemnification clauses in construction contracts often state that one party to the contract – the "indemnitor" – will defend and indemnify the other party from particular types of claims. On construction projects, the "indemnitors" are typically the contractor and architect/engineer ("A-E") who agree to defend and indemnify the owner – the "indemnitee." If the owner is sued for construction defects or personal injury which implicate the contractor or A-E, the owner usually tenders the lawsuit to them for defense and indemnity.

Of course, having a contract right to a defense is not the same as actually receiving a defense. For example, a contractor/indemnitor attempting to avoid paying for defense costs could simply deny the tender of defense from the owner with the hope that when the underlying claim is resolved the defense obligations will be forgotten. If the owner/indemnitee had long memory and pressed to recover defense costs, the contractor/indemnitor could try to justify denying the tender by claiming that its defense obligations coincided with its indemnity obligations and that neither arose until a final determination was made that the underlying claim was one for which indemnity was owed.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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