Is My Contract A “Construction Contract” Subject To The Illinois Anti-Indemnification Act?

By: Jeanne Hoffmann, Capital Member

The Illinois Construction Contract Indemnification for Negligence Act (Anti–Indemnification Act) (740 ILCS 35/0.01 et seq. (West 2000), essentially voids any agreement in a construction contract to indemnify or hold harmless a person from that person’s own negligence. The statute on its face clearly applies “with respect to contracts or agreements… for the construction, alteration, repair or maintenance… or other work dealing with construction” of any structure, “or for any moving, demolition or excavation connected therewith.”

That sounds plain enough; but is my contract one for “construction?”

In the case of Pekin Ins. Co. v. Designed Equip. Acquisition Corp., 2016 IL App (1st) 151689, Illinois’ 1st District Appellate Court addressed this issue in a case involving a contract for the lease of scaffolding. Designed Equipment company leased scaffolding materials to Abel Building & Restoration and delivered the materials to Abel’s jobsite. The contract included an indemnity provision requiring Designed to indemnify Abel for injury or damages caused or claimed to be caused by the “leased equipment” or the conduct (including active, passive, primary or secondary) of the lessor. When an injured worker filed a lawsuit, the contract’s indemnification provision, and whether it was invalid pursuant to the Anti-Indemnification Act, were at issue. The question was, is an agreement for the lease of equipment a “construction contract?”

The court observed that the word “construction” never appears anywhere in the lease itself. However, using a common sense approach when looking to the language of the lease and the facts of the case, the court concluded that it was “evident that the lease agreement here involves, at least, ‘other work dealing with construction,’ ” rendering the lease’s indemnification provision void under the Illinois Anti-Indemnification Act.

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