JohnsonKreis Construction Co. v. Howard Painting, Inc., et al.; Cincinnati Ins. Co. v. Howard Painting, Inc., et al., [Ms. SC-2023-0882 & SC-2023-0914, Mar. 21, 2025] __ So. 3d __ (Ala. 2025). The Court (Shaw, J.; Stewart, C.J., and Bryan, Sellers, and Mendheim, JJ., concur; Cook, J., recuses) reverses the Jefferson Circuit Court’s summary judgment in favor of a subcontractor and its insurers, holding that a proportional indemnity clause in a construction subcontract was legally enforceable, even in the context of a wrongful death settlement. The dispute arose after JohnsonKreis Construction Company and Howard Painting, Inc. were named in a wrongful death suit involving a worksite fatality. JohnsonKreis and its insurer, Cincinnati Insurance Co., settled the claim and then sought indemnity and coverage from Howard and its insurers, Auto-Owners Insurance Co. and Owners Insurance Co. The trial court found that the indemnity clause was unenforceable based on Alabama’s prohibition on apportioning wrongful death damages. Ms. **14-15.
The Supreme Court rejects this reasoning, emphasizing that tort law limitations on contribution and non-apportionment do not apply to contract-based indemnity claims and parties may allocate liability by agreement, including claims involving punitive damages. The Court holds that the subcontract’s indemnity clause requiring Howard to indemnify JohnsonKreis “to the proportional extent of Howard’s responsibility” was enforceable as written. Ms. **19-20.
The Court reaffirms that indemnity provisions are enforceable where the language is clear and unequivocal, even where they require indemnification of a party for “claims resulting solely from the negligence of the indemnitee.” See Mobile Infirmary Ass’n v. Quest Diagnostics Clinical Labs., 381 So. 3d 1133, 1143 (Ala. 2023); Holcim (US), Inc. v. Ohio Cas. Ins. Co., 38 So. 3d 722, 729 (Ala. 2009); Parker Towing Co. v. Triangle Aggregates, Inc., 143 So. 3d 159, 167 (Ala. 2013). Ms. **19-20.