Contractor's indemnity rights apply to both defective-work and tort claims

By Steven G. Wraith

A general contractor's indemnity rights against a subcon-tractor apply to both defective-work and tort claims, the Washington Court of Appeals has held.

In MacLean Townhomes, LLC v. P.J. Interprize, Inc., 133 Wn. App. 828 (2006), MacLean was the developer and general contractor of a condominium project. P.J. Interprize (PJI) was one of the subcontractors. The indemnity clause in the subcontract required PJI to defend and indemnify MacLean for “any and all claims” arising from the subcontract. After completion of the project, water leaks and other construction problems arose. The homeowners alleged breach of warranties by MacLean under the Washington Condominium Act. The homeowners and MacLean entered into a cooperative investigation and repair resolution agreement, and eventually settled.

MacLean sued subcontractors, including PJI, for contractual indemnity and on other grounds. PJI moved for summary judgment, arguing that the indemnity clause applies only to tort-based claims, not to the homeowners’ WCA claims. The trial court agreed and dismissed the indemnity claim. MacLean appealed. The Court of Appeals reversed, holding that “any and all claims” plainly included the homeowners’ defective-work claims. Nothing in the indemnity clause limited PJI’s duty to defend and indemnify MacLean to tort-based claims only.

MacLean is the first reported Washington decision interpreting contractual indemnity clauses in cases involving defective condominium construction and will provide much needed guidance to lower courts in interpreting similar clauses.