Duty to Defend and Duty to Indemnify A Distinction with a Difference By E. Tyron Brown Hawkins Parnell Thackston & Young LLP Atlanta, Georgia 30308
[email protected] INTRODUCTION The contractual duties to defend and indemnify are two of the most important types of allocation of risk in construction contracts. A typical contract provision containing a duty to defend and a duty to indemnify states as follows: To the fullest extent permitted by law . (Indemnitor) shall indemnify, defend and hold harmless (Indemnified Parties) from and against any and all liabilities, claims, demands, causes of action, administrative or regulatory proceedings, liens, settlements, judgments and expenses, including, but not limited to, reasonable attorney’s fees and investigative costs, directly or indirectly resulting from . injury . .or property damage arising out of or in connection with the performance of the Work of (Indemnitor), its agents, servants, employees, or independent contractors retained or hired by (Indemnitor). Although these two legal concepts are related and may be contained in the same paragraph, it is important to distinguish between the duty to defend and the duty to indemnify. A duty to defend is a separate, independent obligation from a contractual duty to indemnify. Ashton Park Trace Apts. v. City of Decatur, 2015 U.S. Dist. LEXIS 185688, *14 (N.D. Ga. 2015); see ALEA London Ltd. v. Woodcock, 286 Ga. App. 572, 578-79 (2007). Attorneys representing a party with a contract containing a duty to defend and indemnify provision should diligently analyze the distinct applications, triggers, rights, and obligations of these two separate legal concepts. DUTY TO DEFEND The duty to defend is broader than the duty to indemnify.