indemnity clause in Delaware

2024Jude McCormick Chancellor cc: All counsel of record (by File & ServeXpress) issues at stake in the case and an assessment of the plaintiffs’ level of success.” (citation omitted)). 8 Mot. ¶ 3. 9 Dkt. 14 at 47–48 (citing Patch v. Hanley, 2002 WL 31647908 , at *10 (Cal. Ct. App. Nov. 22, 2002) (“Since the indemnity agreement at issue here did not explicitly provide for attorney fees incurred in pursuing an indemnity claim, the indemnitee was not entitled to them.” (internal quotation marks and citations omitted)); Otis Elevator Co. v. Toda Construction, 32 Cal.Rptr.2d 404 , 406–07 (Cal. Ct. App.

2024Jude McCormick Chancellor cc: All counsel of record (by File & ServeXpress) issues at stake in the case and an assessment of the plaintiffs’ level of success.” (citation omitted)). 8 Mot. ¶ 3. 9 Dkt. 14 at 47–48 (citing Patch v. Hanley, 2002 WL 31647908 , at *10 (Cal. Ct. App. Nov. 22, 2002) (“Since the indemnity agreement at issue here did not explicitly provide for attorney fees incurred in pursuing an indemnity claim, the indemnitee was not entitled to them.” (internal quotation marks and citations omitted)); Otis Elevator Co. v. Toda Construction, 32 Cal.Rptr.2d 404 , 406–07 (Cal. Ct. App.

2023Osborn v. Kemp, 991 A.2d 1153, 1159-60 ; see also Rhone–Poulenc Basic Chem.

2023Co., 616 A.2d at 1196 ). 70 Escrow Agreement § 5(c). 71 Id. 72 Id. § 5(a)(ii) (cleaned up). -17- claim.73 If an indemnity claim becomes a Disputed Claim, then payment may only be made as provided in Section 5(b) of the Escrow Agreement.74 Section 5(b) states that the escrow agent must “not make any payment with respect to any Disputed Claim” until the disposition of the Disputed Claim has either been resolved “in writing by the Parties,” or “by a final judgment of a court of competent jurisdiction.”75 NSI-MI is entitled to the release of the withheld escrow funds in accordance with the Escrow

2023Co., 135 A.3d 1271 , 1280 & n.36 (Del. 2016) (“[N]umerous decisions of our Court of Chancery have consistently held that an indemnity claim does not accrue until the underlying action is resolved.” (collecting Section 145 precedent)). 138 See, e.g., Paolino v. Mace Sec.

2022Id. at 17–18. 62 Given the Court’s rulings, the Court need not address JBA’s arguments regarding the indemnity clause. 15 2.

2020Relying largely upon Nova Research, Inc. v. Penske Truck Leasing Co., 952 A.2d 275 (Md. 2008), the Superior Court concluded that the American Rule “would be ‘gutted’ if the court implied a fee-shifting provision in first-party actions.” TranSched, 2012 WL 1415466 , at *2 (quoting Nova, 952 A.2d at 285 ).

2020Relying largely upon Nova Research, Inc. v. Penske Truck Leasing Co., 952 A.2d 275 (Md. 2008), the Superior Court concluded that the American Rule “would be ‘gutted’ if the court implied a fee-shifting provision in first-party actions.” TranSched, 2012 WL 1415466 , at *2 (quoting Nova, 952 A.2d at 285 ).

2020ABRY specifically provides that “the public policy of this State will not permit the Seller to insulate itself from the possibility that the sale would be rescinded if the Buyer 62 January 15 Hearing Tr. at 63:7−12. 63 ABRY, 891 A.2d at 1045 . 64 Id. at *1035. 65 Pl.’s Supp.

2017Aluminum Corp., 807 F. Supp. 1133, 1141 (S.D.N.Y. 1992), aff’d in part, vacated in part, 5 F.3d 10 (2d Cir. 1993). 109 Heimbach v. Metro.

1984Rock v. Delaware Electric Cooperative, Inc., Del.Super., 328 A.2d 449 (1974).

1984Agcy., Inc. v. Turner Const. Co., Del.Supr., 301 A.2d 273 (1972), the Court upheld as sufficiently clear and unequivocal an indemnity clause which included the phrase, “whether or not such claims are based upon [indemnitee’s] alleged active or passive negligence or participation in the wrong .... ” It has been held, however, that while the intention to indemnify against the result of the indemnitee’s negligence must be clear and unequivocal, it need not be expressed in so many words.

1979Rossmoor Sanitation, Inc. v. Pylon, Inc., Cal.Supr., 13 Cal.3d 622 , 119 Cal.Rptr. 449 , 532 P.2d 97 (1975).

1979Rossmoor Sanitation, Inc. v. Pylon, Inc., Cal.Supr., 13 Cal.3d 622 , 119 Cal.Rptr. 449 , 532 P.2d 97 (1975).

1974Dick relies on Altemus v. Pennsylvania Railroad Company, D.Del., 210 F.Supp. 834 (1962) for the proposition that the class of persons to he covered by the indemnification must be clearly set forth.

1974Supr., 277 A.2d 678 (1971) the class of persons whose injuries were covered by the indemnity clause was held to be sufficiently defined by the phrase “any and all persons” to include the contractor’s employee and the subcontractor’s employee, where the agreement made it clear that the indemnification protected the indemnitee against indemnitee’s own negligence.

1973These cases do not support Engineers’ argument that Contractor is liable to Engineers despite the existence of an indemnity clause in Contract 100, and Engineers are mistaken when they suggest that Diamond, supra, embraces this “chain of contracts” theory.