Constable v. NORTHGLENN, LLC
2011 Colo. LEXIS 232
Colo.2011Background
- Northglenn owns a shopping center and Constable leased space and operates a flower shop there.
- Constable signed an indemnity clause in the five-year lease requiring her to hold Northglenn harmless for injuries in the Center.
- The indemnity covers injuries in the Premises or Center from visitors or Constable’s business, with an exception for Northglenn’s gross negligence or intentional torts.
- Northglenn sought indemnity from Constable in a third-party action; Constable moved for law determination under C.R.C.P. 56(h).
- The district court found the indemnity void as against public policy; the court of appeals reversed, upholding the indemnity as clear and enforceable.
- The Supreme Court of Colorado granted review to decide whether the indemnity provision is void under public policy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether indemnity for a party's own negligence is enforceable | Constable: indemnity includes own-negligence; clear intent. | Northglenn: indemnity covers own negligence; valid with clear language. | Indemnity for own negligence is enforceable with clear intent. |
| Whether indemnity contracts delegating nondelegable duties violate public policy | Constable: indemnity cannot relieve nondelegable duty; public policy bars it. | Northglenn: indemnity does not delegate; policy permits allocation of risk. | Indemnity does not contravene public policy by addressing nondelegable duties. |
| Whether the lease language clearly expresses intent to indemnify Northglenn for Northglenn's own negligence | Constable: broader language with exceptions insufficiently clarifies intent. | Northglenn: broad ‘any and all’ language with an explicit exception demonstrates clear intent. | Lease language clearly expresses intent to indemnify for Northglenn's own negligence. |
Key Cases Cited
- Pub. Serv. Co. v. United Cable Television, Inc., 829 P.2d 1280 (Colo. 1992) (indemnity for own negligence enforceable with clear expression of intent)
- United States v. Seckinger, 397 U.S. 203 (U.S. 1970) (clear and unequivocal expression required to indemnify for own negligence)
- Williams v. White Mountain Constr. Co., 749 P.2d 423 (Colo. 1988) (indemnity language can express intent to indemnify own negligence)
- Equitex, Inc. v. Ungar, 60 P.3d 746 (Colo.App. 2002) (public policy limits on indemnity for certain conduct)
- Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465 (Colo. 2004) (indemnity in commercial leases may reflect mutual intent)
- Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (Colo. 1989) (broad indemnity language may be adequate to show intent)
- Bohrer v. Church Mut. Ins. Co., 965 P.2d 1258 (Colo. 1998) (public policy bars indemnity for intentional/willful acts)