indemnity clause in Indiana

2020Utilities, 457 N.E.2d 259, 264 (Ind. Ct. App. 1983)). “[T]he indemnitee may recover attorney fees from the indemnitor incurred through an original action which is settled, and also for the cost of prosecuting the indemnity clause.” Id. (emphasis added).

2020Utilities, 457 N.E.2d 259, 264 (Ind. Ct. App. 1983)). “[T]he indemnitee may recover attorney fees from the indemnitor incurred through an original action which is settled, and also for the cost of prosecuting the indemnity clause.” Id. (emphasis added).

2008See Morris v. McDonald’s Corp., 650 N.E.2d 1219, 1222 (Ind.Ct.App.1995). “[A]n an indemnity clause covers the risk of harm sustained by third persons that might be caused by either the indemnitor or the indemnitee” and shifts the burden to the indemnitor. 2 Id.

2008See Morris v. McDonald’s Corp., 650 N.E.2d 1219, 1222 (Ind.Ct.App.1995). “[A]n an indemnity clause covers the risk of harm sustained by third persons that might be caused by either the indemnitor or the indemnitee” and shifts the burden to the indemnitor. 2 Id.

2018Id. at 1098 .

2018Id. [29] Arguing that Fackler is inapplicable and inapposite to the facts of this case, Husband claims that the ex-wife in Fackler sued her ex-husband for breaching the settlement agreement and for the non-payment of a fixed money judgment.

2016Inc. v. Dods, 193 F.Supp.2d 1183, 1193 (D.Haw.2002) (holding that retroactive indemnity provision must be stated “clearly and unequivocally”); DaimlerChrysler Corp. v. Wesco Distribution, Inc., 281 Mich.App. 240 , 760 N.W.2d 828, 833 (2008) (noting that an indemnity clause “cannot be construed to operate retrospectively unless ... the parties expressly provide so in their agreement” (internal citation and quotation marks omitted)); Quality King Distribs., Inc. v. E & M ESR, Inc., 36 A.D.3d 780 , 827 N.Y.S.2d 700, 703 (2007) (finding that an indemnity clause has no retroactive effect “unless by

2016Inc. v. Dods, 193 F.Supp.2d 1183, 1193 (D.Haw.2002) (holding that retroactive indemnity provision must be stated “clearly and unequivocally”); DaimlerChrysler Corp. v. Wesco Distribution, Inc., 281 Mich.App. 240 , 760 N.W.2d 828, 833 (2008) (noting that an indemnity clause “cannot be construed to operate retrospectively unless ... the parties expressly provide so in their agreement” (internal citation and quotation marks omitted)); Quality King Distribs., Inc. v. E & M ESR, Inc., 36 A.D.3d 780 , 827 N.Y.S.2d 700, 703 (2007) (finding that an indemnity clause has no retroactive effect “unless by

2016Inc. v. Dods, 193 F.Supp.2d 1183, 1193 (D.Haw.2002) (holding that retroactive indemnity provision must be stated “clearly and unequivocally”); DaimlerChrysler Corp. v. Wesco Distribution, Inc., 281 Mich.App. 240 , 760 N.W.2d 828, 833 (2008) (noting that an indemnity clause “cannot be construed to operate retrospectively unless ... the parties expressly provide so in their agreement” (internal citation and quotation marks omitted)); Quality King Distribs., Inc. v. E & M ESR, Inc., 36 A.D.3d 780 , 827 N.Y.S.2d 700, 703 (2007) (finding that an indemnity clause has no retroactive effect “unless by

2016Haw. 2002) (holding that retroactive indemnity provision must be stated “clearly and unequivocally”); DaimlerChrysler Corp. v. Wesco Distribution, Inc., 760 N.W.2d 828, 833 (Mich. Ct. App. 2008) (noting that an indemnity clause “cannot be construed to operate retrospectively unless . . . the parties expressly provide so in their agreement” (internal citation and quotation marks omitted)); Quality King Distribs., Inc. v. E & M ESR, Inc., 827 N.Y.S.2d 700, 703 (N.Y.

2015The ITCA “applies only to a claim or suit in tort,” Ind.Code § 34-13-3-1, and this is a dispute over a contract provision, not a tort claim. 6 [36] The Commission argues the ITCA applies to this contract action because the indemnity clause is in fact “a means of shifting tort liability to Indiana taxpayers,” (Commission’s Br. at 27), and only the legislature “decides the .terms of potential taxpayer exposure to civil damages suits,” 7 The Commission notes the basic purpose of an indemnity clause is to shift from the indemnitee to the indemnitor the financial responsibility to pay damages, citi

2015Nor do we address its argument it has no “authority to agree to excess tort liability.” (Commission’s Br. at 36.) Court of Appeals of Indiana | Opinion 49A02-1404-CT-288 | March 30, 2015 Page 18 of 31 (Commission’s Br. at 27), and only the legislature “decides the terms of potential taxpayer exposure to civil damages suits.”7 The Commission notes the basic purpose of an indemnity clause is to shift from the indemnitee to the indemnitor the financial responsibility to pay damages, citing Mead Johnson & Co. v. Kenco Grp., Inc., 899 N.E.2d 1, 3 (Ind. Ct. App. 2009).

2009In concluding that the agreement was enforceable, we relied on Penn Central Co. v. Youngstown Sheet and Tube Co., 146 Ind.App. 216, 218-19 , 253 N.E.2d 704, 706 (1969), where the evidence demonstrated that a motorist was crossing a Penn Central railroad track in his automobile when he was struck and injured by a train that was owned and operated by Youngstown.

2009In concluding that the agreement was enforceable, we relied on Penn Central Co. v. Youngstown Sheet and Tube Co., 146 Ind.App. 216, 218-19 , 253 N.E.2d 704, 706 (1969), where the evidence demonstrated that a motorist was crossing a Penn Central railroad track in his automobile when he was struck and injured by a train that was owned and operated by Youngstown.

1986While noting the disparity in the parties' bargaining positions, the court observed that "[the evidence also reveals that the clause was in fine print and contained no title heading which would have identified it as an indemnity clause." Id., 276 N.E.2d at 147 (emphasis in original).

1986While noting the disparity in the parties' bargaining positions, the court observed that "[the evidence also reveals that the clause was in fine print and contained no title heading which would have identified it as an indemnity clause." Id., 276 N.E.2d at 147 (emphasis in original).

1983It cites three cases, each of which invalidated an indemnity clause purporting to cover the indemnitee’s own negligence: Indiana State Highway Comm. v. Thomas (1976), 169 Ind.App. 13 , 346 N.E.2d 252, 259-60 .

1983It cites three cases, each of which invalidated an indemnity clause purporting to cover the indemnitee’s own negligence: Indiana State Highway Comm. v. Thomas (1976), 169 Ind.App. 13 , 346 N.E.2d 252, 259-60 .

2025The contract in Price therefore explicitly provided for attorney fee shifting; it did not allow the indemnitee to recover attorney fees for prosecuting the indemnity agreement as 15 In Bethlehem Steel, the trial court denied the indemnitee the opportunity to present evidence of attorney fees, and this Court remanded for a hearing on the issue. 654 N.E.2d at 1168, 1170 .

2004Id. at 1168-69 .

2016Green Co., 231 N.W.2d 907, 916-17 (Iowa 1975) (noting that such clauses must “plainly manifest ] an intention, not to be limited to future losses or liabilities, but also to cover past transactions and existing losses or liabilities” (quoting 42 C.J.S.

2016Green Co., 231 N.W.2d 907 , 916–17 (Iowa 1975) (noting that such clauses must “plainly manifest[] an intention, not to be limited to future losses or liabilities, but also to cover past transactions and existing losses or liabilities” (quoting 42 C.J.S.

2014Sys., Inc. v. Michigan Ash Sales, Inc., 676 N.E.2d 379 (Ind.Ct.App.1997), trans. denied, which upheld an indemnity claim by a public utility against a contractor, mandates a favorable result for the Developers.

2009The basic purpose of an indemnity clause is to “shift the financial responsibility to pay damages from the indemnitee to the in-demnitor.” Ozinga Transportation Systems, Inc. v. Michigan Ash Sales, Inc., 676 N.E.2d 379, 386 (Ind.Ct.App.1997), trans. denied.

2013Moore Heating & Plumbing, Inc. v. Huber, Hunt & Nichols, 583 N.E.2d 142, 146 (Ind.Ct.App.1991); see also Ind. Code § 26-2-5-1 (1975) (an indemnity clause in a “construction or design contract” that indemnifies the indemnitee against liability from the sole negligence of the indemnitee or its agents is “against public policy and ... void and unenforceable”).

1997Id.

1991See Indiana State Highway Commission v. Thomas (1976), 169 Ind. App. 13, 27 , 346 N.E.2d 252, 260 ( quoting Norkus v. General Motors Corp. (S.D.Ind. 1963), 218 F. Supp. 398 ).

1991See Indiana State Highway Commission v. Thomas (1976), 169 Ind.App. 13, 27 , 346 N.E.2d 252, 260 (quoting Norkus v. General Motors Corp. (S.D.Ind.1963), 218 F.Supp. 398 ).

2016Corp., 604 N.E.2d 1315, 1317 (Mass. 1992). 7 In DaimlerChrysler, a Wesco employee was hurt while preparing a quote for electrical repair work at a DaimlerChrysler (“DC”) plant. 760 N.W.2d at 830 .

2016Inc. v. Dods, 193 F.Supp.2d 1183, 1193 (D.Haw.2002) (holding that retroactive indemnity provision must be stated “clearly and unequivocally”); DaimlerChrysler Corp. v. Wesco Distribution, Inc., 281 Mich.App. 240 , 760 N.W.2d 828, 833 (2008) (noting that an indemnity clause “cannot be construed to operate retrospectively unless ... the parties expressly provide so in their agreement” (internal citation and quotation marks omitted)); Quality King Distribs., Inc. v. E & M ESR, Inc., 36 A.D.3d 780 , 827 N.Y.S.2d 700, 703 (2007) (finding that an indemnity clause has no retroactive effect “unless by

2014On appeal, we stated that “[a]lthough the third sentence of the release uses the word indemnity, it is not solely an indemnity clause and it clearly indicated that Plys will ‘hold harmless’ the Hammond defendants.” Id. at 4 ; see also U.S. Auto Club, Inc. v. Smith, 717 N.E.2d 919, 923 (Ind. Ct. App. 1999) (holding that a provision requiring plaintiff to “indemnify and hold harmless [the defendants] from loss, liability damage or cost they may incur due to the presence of the undersigned in or upon the restricted area, whether caused by the negligence of [the defendants] or otherwise” prevented

2010See id. ("Thompson alleges neither an actual express contractual indemnification provision nor a statutory obligation; therefore, the action will lie only where the party seeking indemnity is without actual fault but has been compelled to pay damages because of the wrongful conduct of another for which he is constructively liable An indemnity claim may exist in breach of warranty situations where the retailer is sued upon implied warranties which are identical to those imposed upon the manufacturer's sale to him.") (citations and quotation marks omitted). 12 We decline the Library's invitation

1997Jelleff, Inc. v. Pollak Bros., Inc. (1957) N.D.Ind., 171 F.Supp. 467 .) In Jelleff, quoting from a Minnesota decision, the federal district court discussed an indemnity claim based upon a breach of warranty and stated: “To establish his right to recover against the original seller under such a judgment the purchaser, in a subsequent action over against the seller, must prove that the article involved was purchased by him from such seller and that the warranties under which it was sold to him were identical to those under which he subsequently resold it.” Jelleff, supra, 171 F.Supp. at 471 (quo

1997Jelleff, Inc. v. Pollak Bros., Inc. (1957) N.D.Ind., 171 F.Supp. 467 .) In Jelleff, quoting from a Minnesota decision, the federal district court discussed an indemnity claim based upon a breach of warranty and stated: “To establish his right to recover against the original seller under such a judgment the purchaser, in a subsequent action over against the seller, must prove that the article involved was purchased by him from such seller and that the warranties under which it was sold to him were identical to those under which he subsequently resold it.” Jelleff, supra, 171 F.Supp. at 471 (quo