indemnify.
214
This is true even where the indemnity clause does not expressly
mention attorneys’ fees.
215
With the exception of construction related contacts (see § II, infra.), agreements
under which the indemnitee is indemnified against its own negligence are also
valid.
216
However, a contract for indemnity will not be construed to indemnify a
person against his own negligence where such intention is not expressed in clear and
unequivocal terms.
217
Moreover, such contracts are not favored at law, and where
possible, will be construed so as not to confer immunity from liability.
218
§ II – Exceptions to General Rules of Contractual Indemnity.
6 Del. C § 2704 prohibits parties entering into construction contracts from
transferring the risk of their own negligence to another party through an agreement to
indemnify.
219
The statute provides:
A covenant, promise, agreement or understanding in, or in connection with
or collateral to, a contract or agreement (including but not limited to a
contract or agreement with the State, any County, municipality or political
subdivision of the State, or with any agency, commission, department, body
or board of any of them, as well as any contract or agreement with a private
party or entity) relative to the construction, alteration, repair or maintenance
of a road, highway, driveway, street, bridge or entrance or walkway of any
type constructed thereon, and building, structure, appurtenance or appliance,
including without limiting the generality of the foregoing, the moving,
demolition and excavating connected therewith, purporting to indemnify or
hold harmless architects, engineers, surveyors, owners or others, or their
agents, servants and employees, for damages arising from liability for
bodily injury or death to persons or damage to property caused by or
resulting or arising from or out of the negligence of such architect, engineer,
surveyor, owner or others than the promisor or indemnitor, or their agents,
servants or employees, or without limiting the generality of the foregoing,
caused by or resulting or arising from or out of defects in maps, plans,
designs, specifications prepared, acquired or used by such architect,
engineer, surveyor, owner, or others than the promisor or indemnitor, or
214
Oliver B. Cannon and Son, Inc., 394 A.2d at 1165; Eastern Memorial Consultants v. Grace Lawn
Mem’l Park, 364 A.2d 821,825 (Del. 1976); Delle Donne & Assocs., LLP v. Millar Elevator Serv. Co, 840
A.2d 1244 , 1255 (Del. 2004).
215
Delle Donne & Assocs., LLP, 840 A.2d at 1255
216
6 Del. C. § 2704(a) (2004); Hollingsworth v. Chrysler Corp., 58 Del. 236, 208 A.2d 61 (Del. 1965).
217
Blum v. Kauffman, 297 A.2d 48, 49 (Del. 1972); Powell v. Interstate Vendaway, Inc., 300 A.2d 241, 243
(Del. Super. Ct. 1972).
218
Blum, 297 A.2d at 49.
219
6 Del. C. § 2704 (2004); Wenke v. Amoco Chems. Corp., 290 A.2d 670, 673 (Del. Super. Ct. 1972)
superseded by statute as stated in J.S. Alberici Constr. Co. v. Mid-West Conveyor Co., 750 A.2d 518 (Del.
2000)(initially, 6 Del. C § 2704(a) was thought to only apply to owners and their affiliated preconstruction
professional people who furnish plans, designs, and specifications and then attempt to contract away their
duty to stand behind their product but in 1988, 6 Del. C. § 2704(a) was broadened to include anyone in a
subcontractor/contractor relationship in the construction context).