In Barsness v. General Diesel & Equipment Co., 422 N.W.2d 819 (N.D. 1988), a church leased a crane from General Diesel. One of the church's employees sued General Diesel for injuries he sustained in an accident while using the crane; General Diesel brought a third-party action against the church for contractual indemnity.
The jury's verdict found that the plaintiff was one percent negligent, General Diesel was two percent negligent, and the church was ninety-seven percent negligent.
General Diesel then sought indemnity for the attorney fees it had incurred in retaining separate counsel. The North Dakota Supreme Court concluded that General Diesel was not entitled to indemnity for its attorney fees because the agreement did not provide for indemnity against its own negligence.
The Court held that "an indemnitee who defends against its own negligence may not recover attorney's fees because 'any other rule would be not only unworkable, but would be inconsistent with the general rule that tort defendants, even if vindicated, must pay for their own defense.'" Id. at 827.