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The Related, Yet Distinct, Duties to Indemnify and Defend

An indemnification duty arises when an adverse judgment is imposed that involves monetary payment. Such indemnity is paid by the indemnitor, whose liability doesn’t begin until the conclusion of litigation. This is the case even if a claim for indemnity is brought as part of the underlying litigation simultaneously, in hopes of getting all parties potentially responsible before the court at one time. In such situations the parties and courts avoid having two separate trials for subjects that are the same.

Duty to Defend

However, a duty to defend is included in the provisions of most indemnities. It requires the indemnitee to be defended by the indemnitor against first-party claims and covered third-party claims, depending on how the provision is worded. Our Coachella Valley litigation attorney can help you understand these provisions.

Scope of Obligation

Similarly, the defense’s scope of obligation may range anywhere between a narrow one, limiting the duty to claims which are specific, to a broad one, requiring the indemnitee to be defended by the indemnitor against an action in its entirety where damage is attributed to or related to the scope of construction, design or work administration services of the indemnitor.

Case law and statutory principles related to defense provisions and indemnity contracts interpretation allow extensive freedom and latitude of parties involved to assign responsibilities and rights in the contracts. This includes risk allocation rights, and the right to impose limitations or conditions on defense and indemnity provisions.

It all varies, based on the provision language of the contract. Contact your local Coachella Valley litigation attorney for your legal contract and provisions needs today.

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