Date : Nov 22, 2017
On November 21, 2017, Division One of the Arizona Court of Appeals issued a decision reversing a lower court’s dismissal of our client’s contractual indemnity claim, and further ruling that our client was entitled to defense and indemnity as a matter of law. The case involved a specific indemnity provision in a professional services contract associated with a construction project. The court ruled that the provision included indemnity for the indemnitee’s own negligence, and that the provision’s “sole negligence” exception did not apply. In particular, the Court rejected the argument that, because Arizona has generally abandoned joint and several liability, an indemnitee necessarily faces only liability for “sole negligence”, which falls outside the scope of indemnity. Instead, the court ruled that the “sole negligence” exception would apply only in a case where the indemnitee was 100 percent at fault for the damage. The Court further held that the plain language of the contract required the indemnitor to reimburse defense costs incurred by the indemnitee, and remanded to the trial court to determine the amount of indemnity owed.