indemnity clause in Massachusetts

2003“In determining the validity of an indemnity provision under §29C, it is upon the language of the indemnity clause that we focus rather than upon a finding of facts of the particular accident and an assessment of fault of the parties.” Herson v. New Boston Garden Corp., 40 Mass.App.Ct. 779, 786 (1996), citing Harnois v. Quannapowitt Dev., Inc., 35 Mass.App.Ct. 286, 288 (1993).

2000In determining the validity of an indemnity provision under §29C, it is upon “the language of the indemnity clause that [the court] must focus rather than upon a finding of the facts of the particular accident and an assessment of fault of the parties." Harnois, supra at 288 .

1995See Shea v. Bay State Gas Co., 383 Mass. 218, 225 (1981) (The court “must give effect to the parties’ intentions . . .”).

1984Examining the particular language used in the light of indicia of the parties’ intentions, Shea v. Bay State Gas Co., 383 Mass. 218, 222-223 (1981), we do not see in the indemnity clause the limitation for which Paramount contends and which the trial judge apparently perceived.

2006Corp., 36 Mass. App. Ct. 608 , 613 n.6 (1994) (“Ordinarily, an indemnitee is entitled to recover reasonable attorney’s fees and costs incurred in resisting a claim within the scope of the indemnity clause even where the written indemnity agreement makes no specific reference to attorney’s fees”).

2001Welch Equipment Corp., 36 Mass.App.Ct. 608 (1994), the Appeals Court did not declare void an indemnity provision because the provision contained language which limited the party’s obligation to indemnify an injury resulting from the subcontractor’s negligence or act or omission “to the fullest extent permitted by law." The Callahan court held that “[b]ecause of that limitation, we do not consider the indemnity clause void under §29C.” See supra at 612.

1996See Jones v. Vappi & Co., 28 Mass. App. Ct. 77, 81-82 (1989); Harnois v. Quannapowitt Dev., Inc., 35 Mass. App. Ct. 286, 288 (1993); Callahan v. A.J.

1996See, e.g., Jones v. Vappi & Co., 28 Mass.App.Ct. 77, 82-84 (1989) .

2012See Priestley v. Sharaf’s, Inc., 4 Mass. App. Ct. 218, 221-222 & n.4 (1976) (describing lease indemnity clause).

1995Priestly v. Sharafs, 4 Mass. App. Ct. 218, 221-222 (1976).

2009See id. at 107-108 .

1996Co., 35 Mass. App. Ct. 100, 107 (1993), in which the indemnity clause required the subcontractor to “assume, on behalf of [the general contractor] . . . the defense of any action. . . .” Even if expressed in the contract language, a duty to defend may not be called upon unless the underlying complaint states a claim that some action or inaction of the subcontractor was connected to the damage or injury alleged, e.g., that the place where North received shipments required a delivery person to follow a perilous route or that the floor laid by S&F was inherently slippery.

2009Aho v. Blanchette, 18 Mass.App.Ct. 149, 152 (1984) (“It is not necessary that an indemnity clause state expressly that it covers indemnitee’s negligence”).

1991Hood, Inc., 22 Mass App. Ct. 598, 602 (1986), and cases cited, and it is not “necessary that an indemnity clause state expressly that it covers the indemnitee’s negligence.” Aho v. Blanchette, 18 Mass. App. Ct. 149, 152 (1984).

1995See Kelly v. Dimeo, Inc., 31 Mass. App. Ct. 626, 629-630 (1991).

1994Shea v. Bay State Gas Co., 383 Mass. 218, 222-223 (1981); Kelly v. Dimeo, Inc., 31 Mass. App. Ct. 626, 629 (1991).

2013See Zevitas v. Adams, 276 Mass. 307, 317 (1931) (“Recovery under an indemnity clause of a lease cannot be had until the specified term of the lease has ended”); Merchants Nat’l Bank v. Ryerson, 251 Mass. 314, 319 (1925); Gardiner v. Parsons, supra. See also Manhattan Props., Inc. v. Irving Trust Co., supra at 338 (fulfilment of contract indemnity contingent on what may happen “up to the end of the original term”).

2012As succinctly stated in Zevitas v. Adams , 276 Mass, at 317, “[r]ecovery under an indemnity clause of a lease cannot be had until the specified term of the lease has ended.” The reasoning underlying this legal tenet is that such liability is ultimately “contingent upon events thereafter occurring, because the full amount which the lessee eventually must pay for the remainder of the term cannot be wholly ascertained until the period ends.” Gardiner v. Parsons, 224 Mass. 347, 350 (1916).

2013The judge who decided the cross motions for partial summary judgment recognized our general rule that recovery of losses under an indemnification clause must wait until the end of the lease period, but, relying on Woodbury v. Sparrell Print, 187 Mass. 426, 431 (1905) (Woodbury), concluded that an exception to this rule exists where, as here, the landlord finds a replacement tenant for the remainder of the original lease period.

2013See Zevitas v. Adams, 276 Mass. 307, 317 (1931) (“Recovery under an indemnity clause of a lease cannot be had until the specified term of the lease has ended”); Merchants Nat’l Bank v. Ryerson, 251 Mass. 314, 319 (1925); Gardiner v. Parsons, supra. See also Manhattan Props., Inc. v. Irving Trust Co., supra at 338 (fulfilment of contract indemnity contingent on what may happen “up to the end of the original term”).

2013See Zevitas v. Adams, 276 Mass. 307, 317 (1931) (“Recovery under an indemnity clause of a lease cannot be had until the specified term of the lease has ended”); Merchants Nat’l Bank v. Ryerson, 251 Mass. 314, 319 (1925); Gardiner v. Parsons, supra. See also Manhattan Props., Inc. v. Irving Trust Co., supra at 338 (fulfilment of contract indemnity contingent on what may happen “up to the end of the original term”).

2012An indemnity clause differs from a liquidated damages clause in that it “do[es] not provide for liquidation of damages . . . , nor indeed for any right to damages for breach of the covenant to pay rent.” Manhattan Properties, Inc. v. Irving Trust Co., 291 U.S. 320, 337 (1934).

2008Corp. v. Frank Bean, Inc., 43 Mass. App. Ct. 66, 69 (1997) (interpreting “ ‘any Subcontractor’ in the indemnity clause to mean precisely that, any subcontractor, whether employed by [the plaintiff] or by [the defendant]”).

2003“In determining the validity of an indemnity provision under §29C, it is upon the language of the indemnity clause that we focus rather than upon a finding of facts of the particular accident and an assessment of fault of the parties.” Herson v. New Boston Garden Corp., 40 Mass.App.Ct. 779, 786 (1996), citing Harnois v. Quannapowitt Dev., Inc., 35 Mass.App.Ct. 286, 288 (1993).

2003“Section 29C only voids contractual indemnity provisions which require indemnification for injuries not caused by the subcontractor.” Herson, 40 Mass.App.Ct. at 779 .

2002To state a claim for fraudulent misrepresentation, the plaintiff “must show a false statement of a material fact made to induce the plaintiff to act, together with reliance on the false statement by the plaintiff to the plaintiffs detriment.” Zimmerman v. Kent, 31 Mass.App.Ct. 72, 77 (1991).

2002Providence & Worcester R.R., 416 Mass. 319, 324 (1993).

1998See Polaroid v. Rollins Environmental Services, 416 Mass. 684, 690-91 (1993) (“When the offeree accepts the offeror’s services without expressing any objection to the offeror’s terms, the offeree has manifested assent to those terms . . .”); see also Thor, supra at 10: by completing performance under the terms of the purchase order without objecting to the indemnity clause, and by accepting payment from Boston Edison, [the third-party defendant] recognized the existence of a contract pertaining to the services referenced in the . . . purchase order and accepted the terms contained on the rever

1996Dellovade, Inc., 39 Mass. App. Ct. 1, 3 (1995), in which we held that there was no meaningful distinction between the language “arising out of or in consequence of,” as used in an indemnity clause in a construction contract between a general contractor and subcontractor, and the words “caused by” set forth in G.

1996See, e.g., Divenuti v. Reardon, 37 Mass.App.Ct. 73, 78 (1994).

1995Barnes v. Berkshire Railway, 281 Mass. 47, 50 (1932).

1995Priestly v. Sharafs, Inc., infra.; Taylan Realty Co., Inc. v. Student Book Exchange, Inc., 354 Mass. 777, 778 (1968).

1995See also Milana Corp. v. Piece O'Pizza of America Corp., 1 Mass. App. Ct. 839 (1973).