Many subcontracts contain indemnity language requiring the sub to defend and indemnify the contractor from any OSHA citations or penalties related to the subcontractor’s scope of work. At first blush many subcontractors see the logic of such a clause. But, these subcontractors frequently fail to appreciate the potentially far-reaching consequences of such an indemnity if the contractor receives enhanced citations or penalties related to his prior history or problems on other projects (i.e., willful citation due to a fatality on a different project the month before).
So we often suggest compromise language designed to remove this risk unrelated to the projects where the subcontractor is working. The following is sample language that we have successfully used to address this concern:
Notwithstanding the foregoing, Subcontractor shall not be responsible to indemnify Contractor to the extent Contractor is assessed any increased, enhanced, or additional fine or penalty that arises out of or relates to Contractor’s prior history, work record, or any project performance that did not involve any action, inaction, or fault of Subcontractor.