During its 2012 session, the Louisiana legislature passed two acts amending L.R.S. 9:2780.1. The statute prohibits the enforcement of agreements in transportation and construction contracts requiring a party to indemnify, defend or hold harmless another from any liability or loss or damage resulting from the negligence or intentional acts or omissions of that party, or a third party over whom the party providing the indemnitor has no control.
One act amends the term “construction contract” to remove from the definition agreements for design and repair or maintenance. The definition now encompasses agreements for construction, alteration or renovation of a building, structure, highway, road, bridge, water line, sewer line, oil line, gas line, appurtenance or other improvement to real property. Interestingly, although repair and maintenance contracts are now generally excluded from the definition, the definition includes repair or maintenance of a highway, road or bridge. Additionally, the definition of the term “third party” has been amended to exclude any party who has otherwise contracted with the indemnitor or is at the indemnitee’s facility at the invitation or direction of the indemnitor.
The act, further, provides that the statute does not invalidate or prohibit the enforcement of any clause in a construction contract containing the indemnitor’s promise to indemnify, defend or hold harmless the indemnitee or an agent or employee of the indemnitee if the contract also requires the indemnitor to obtain insurance to insure the obligation to indemnify, defend or hold harmless, and there is evidence that the indemnitor recovered the cost of the required insurance in the contract price. However, the indemnitor’s liability under such clause shall be limited to the amount of the proceeds that were available under the insurance policy or policies that the indemnitor was required to obtain. Still further, the statute does not invalidate or prohibit the enforcement of any clause in a construction contract that requires the indemnitor to procure insurance or name the indemnitee as an additional insured on the indemnitor’s policy of insurance, but only to the extent that such additional insurance coverage provides coverage for liability due to an obligation to indemnify, defend or hold harmless otherwise authorized, provided that such insurance coverage is furnished only when the indemnitor is at least partially at fault or otherwise liable for damages ex delicto or quasi ex delicto. Acts 2012, No. 684.
The second act amends the term “construction contract” to include the repair or maintenance of a highway, road or bridge. It also includes provisions stating the statute shall not prohibit a motor vehicle operator from securing uninsured motorist coverage or prohibit any employee from recovering damages, compensation, or benefits under workers’ compensation laws or any other claim or cause of action. Acts 2012, No. 780.
Both acts were signed by the governor. Act No. 684, by its terms, became effective upon the signature of the governor. Act No. 780 becomes effective on August 1, 2012. It states that Act, and Act No. 684, shall have prospective application only, and its provisions shall supersede and control to the extent of conflict with the provisions of any other act of the 2012 session, i.e., Act 684. Thus, to the extent Act No. 780 conflicts with Act No. 684, the provisions of Act No. 780 will prevail.