§ 130.002.Covenant or Promise Void and Unenforceable

Three prohibitions, each protecting a different party from an indemnity it did not bargain for on equal terms.

Subsection (a) protects the contractor. A covenant is void and unenforceable if it makes the contractor indemnify or hold harmless an architect, engineer, or land surveyor from liability for damage caused by defects in plans, designs, or specifications, or by the negligence of the design professional, where the damage arises from personal injury, death, or property injury.

The principle is that a contractor should not insure the designer against the designer’s own drawings. The contractor builds what it is given and has no control over the design.

Subsection (b) runs the other way and protects the design professional. A covenant making an architect, engineer, or land surveyor indemnify an owner from liability for damage caused by the owner’s own negligence is void — except in contracts for a single family or multifamily residence.

Subsection (c) addresses the duty to defend, which is broader and more expensive than a duty to indemnify because it attaches on allegation rather than on liability. A clause requiring a design professional to defend a party against a claim based wholly or partly on the owner’s negligence, fault, or breach is void to that extent.

What survives is proportionate: a contract may provide for reimbursement of an owner’s reasonable attorney’s fees in proportion to the design professional’s liability.

Three exceptions follow. An owner may still require to be named an additional insured under the professional’s policy and given the defence that policy provides. Subsection (c) does not apply to design-build contracts, nor to a covenant to defend a claim of negligent hiring of the professional.