Dutton v. Charles Pankow Builders

In Dutton v. Charles Pankow Builders, 296 A.D.2d 321 (1st Dept. 2002), where the Court recognized the principle of "partial indemnification." Such type of indemnification consists of an indemnification agreement that purportedly seeks indemnity that does not run to the negligent conduct of the owner or general contractor (indemnitee). In Dutton, supra, the indemnification clause provided that: "to the fullest extent permitted by applicable law, the subcontractor will indemnify the general contractor for all liabilities arising out of personal injuries sustained in connection with the subcontractor's work regardless of whether [the general contractor is] partially negligent ... excluding only liability created by the [general contractor's] sole and exclusive negligence." The Court focused on the phrases limiting the subcontractor's obligation to that permitted by law and excluding liability created by the general contractor's sole and exclusive negligence. According to the Court, the provision was valid because it permitted partial, not full indemnification of the general contractor for personal injuries partially caused by its negligence. With regard to the phrase calling for indemnification of the general contractor "regardless" of its partial negligence, the Dutton Court explained: "although it is reasonable to construe the exclusion for the general contractor's sole negligence as applying only to situations where the general contractor is found solely at fault, not like here, where the general contractor was found partially at fault, it is just as reasonable to construe the 'regardless' phrase as requiring indemnification even where the general contractor is partially negligent, but excluding that portion of the joint liability attributable to its negligence. As between these two reasonable constructions of the indemnification clause, we adopt the one that renders it legal and gives it effect." (Id. at 322.)