Phillip B. Silverman successfully convinced the Pennsylvania Supreme Court in Bernotas v. Goldsmith Associates, December 22, 2004 to substantially abrogate the use of so called “pass-through” indemnification provisions that are frequently found in construction subcontracts. The Superior Court, the intermediate appellate court, and the trial court upheld the use of such provisions.

 

During the course of construction, a patron was injured when she fell in a hole in a construction area inside a supermarket. The supermarket had a contract with the general contractor obligating the general contractor to indemnify the owner for all liability resulting from incidents except where the supermarket was solely negligent. The general contractor had in turn, a subcontract, which sought to “pass-through” its indemnification obligation.

 

After a settlement was reached with the plaintiff, a trial was held to determine the indemnification obligations among the parties. The trial court determined that because the supermarket was not solely negligent, in effect, the entire amount of the settlement was “passed-through” to our client.

 

Now, if a contractor seeks indemnification for its own negligence, such an obligation must be expressly spelled out in the contract. Simply incorporating the language of another contract is insufficient.