The Colorado anti-indemnity statute, codified at C.R.S. 13-21-111.5(6) and effective July 1, 2007, voids any provision in a construction agreement that requires one party to indemnify, defend, or insure another party against liability caused by that other party’s own negligence.1Justia. Colorado Code 13-21-111.5 – Civil Liability Cases – Pro Rata Liability of Defendants Indemnification tied to the indemnitor’s own proportionate share of fault is still allowed. Everything below explains where that line falls and how it plays out in the clauses you actually sign.
What the Statute Voids
Three types of construction-contract provisions are void as against public policy: indemnification for the other party’s negligence, a duty to defend the other party against claims arising from that party’s negligence, and insurance obligations that extend coverage to the other party’s negligence.1Justia. Colorado Code 13-21-111.5 – Civil Liability Cases – Pro Rata Liability of Defendants The prohibition also reaches liability caused by a third party under the control or supervision of the party seeking indemnity.
So a general contractor cannot make a subcontractor pay for injuries the GC’s own crew caused. A project owner cannot push its own negligence down onto a contractor. If a party later tries to invoke an overbroad clause, the court will refuse to enforce it. The rest of the contract survives; only the offending provision falls away.
Defense Obligations Are Covered, Not Just Indemnity
The prohibition reaches the duty to defend, not only the duty to indemnify after a judgment.1Justia. Colorado Code 13-21-111.5 – Civil Liability Cases – Pro Rata Liability of Defendants That matters because defense obligations are broader and kick in earlier. Legal costs start piling up the moment a claim is made; indemnification only becomes due once liability is established. A clause requiring a subcontractor to fund the GC’s defense of a claim rooted in the GC’s own negligence is void, even if the GC is never held liable.
Proportionate-Fault Indemnification Still Works
The statute does not eliminate indemnification from construction contracts. It preserves provisions that limit indemnification to the indemnitor’s proportionate share of the negligence, including negligence of the indemnitor’s agents, representatives, subcontractors, and suppliers.1Justia. Colorado Code 13-21-111.5 – Civil Liability Cases – Pro Rata Liability of Defendants Attorney fees and costs can be recovered within that proportionate share when the contract or another statute authorizes it.
The rule tracks Colorado’s comparative negligence framework under C.R.S. 13-21-111, which reduces damage awards in proportion to each party’s degree of fault.2Justia. Colorado Code 13-21-111 – Negligence Cases – Comparative Negligence as Measure of Damages You can be made to pay for what you caused. You cannot be made to pay for what someone else caused.
Insurance Clauses and Additional Insured Endorsements
A construction contract can still require a party to buy and maintain liability insurance covering its own work, and it can require that party to name the other as an additional insured.1Justia. Colorado Code 13-21-111.5 – Civil Liability Cases – Pro Rata Liability of Defendants The catch is that the additional insured coverage can only extend to liability arising from the indemnitor’s own acts or omissions. If the endorsement purports to cover the indemnitee for harm the indemnitor did not cause, that broader coverage is void.
The indemnification clause and the insurance requirement each have to comply with the statute on their own. It’s a common mistake to draft a properly limited indemnity clause and then require an additional insured endorsement that quietly reaches further. The endorsement fails independently.
Builder’s risk insurance is exempt from the statute entirely.1Justia. Colorado Code 13-21-111.5 – Civil Liability Cases – Pro Rata Liability of Defendants Those policies cover property damage to the project during construction rather than shifting negligence liability between parties.
Which Contracts the Statute Covers
“Construction agreement” is defined broadly. It reaches contracts, subcontracts, and agreements for materials or labor connected to construction, alteration, renovation, repair, maintenance, design, planning, supervision, inspection, testing, or observation of buildings, structures, highways, bridges, water or sewer systems, gas distribution systems, and similar work, along with demolition, excavation, and moving related to any of that.1Justia. Colorado Code 13-21-111.5 – Civil Liability Cases – Pro Rata Liability of Defendants Design contracts, engineering agreements, inspection services, and testing arrangements are all inside the tent.
Two exclusions are worth flagging. Contracts involving property owned or operated by railroads and certain water, sanitation, and sewage districts are not covered. And real property leases and rental agreements between landlords and tenants are excluded even when the lease includes construction-related provisions like repair or improvement obligations.1Justia. Colorado Code 13-21-111.5 – Civil Liability Cases – Pro Rata Liability of Defendants
What the Statute Does Not Change
A savings clause preserves several existing doctrines. The statute does not abrogate respondeat superior, vicarious liability, or other nondelegable duties recognized at common law. It does not shield an at-fault party from negligence liability. And it does not disturb the exclusive remedy provisions or employer immunities under Colorado’s workers’ compensation laws.1Justia. Colorado Code 13-21-111.5 – Civil Liability Cases – Pro Rata Liability of Defendants
On workers’ comp specifically: the anti-indemnity rule still applies to construction agreements even when workplace injuries are the underlying claim. Employer immunity and the exclusive remedy doctrine operate on their own track alongside it.
Drafting a Compliant Construction Contract
A handful of practices keep a Colorado construction contract on the right side of the statute.
- Tie every indemnification obligation to the indemnitor’s proportionate share of fault, including the fault of its agents, subcontractors, and suppliers. Language that reaches the indemnitee’s own negligence will not survive.
- Put insurance requirements in a separate section from indemnity, and confirm that any additional insured endorsement is limited to liability arising from the named insured’s own work.
- Handle defense costs and attorney fees under the same proportionate fault standard. A blanket duty-to-defend clause that doesn’t carve out the indemnitee’s own negligence will fail.
- Scrub boilerplate imported from other states. Broad-form “any and all claims” indemnity language is common in national templates and is void in Colorado to the extent it would cover the indemnitee’s own negligence.
Severability will usually preserve the rest of the contract when a court strikes a bad clause, but the risk-transfer the parties bargained for is gone. Getting the language right at signing is the only reliable path.