By: Matthew C. Meiners

The Louisiana Construction Anti-Indemnity Act (La. R.S. 9:2780.1) generally renders null, void and unenforceable any provision in a construction contract (defined broadly to include design, construction, alteration, renovation, repair, and maintenance) which either:

(1) purports to indemnify, defend, or hold harmless, or has the effect of indemnifying, defending, or holding harmless, the indemnitee against the negligence or intentional acts or omissions of the indemnitee, an agent or employee of the indemnitee, or a third party over which the indemnitor has no control; or

(2) purports to require an indemnitor to procure liability insurance covering the acts or omissions or both of the indemnitee, its employees or agents, or the acts or omissions of a third party over whom the indemnitor has no control.

However, the Construction Anti-Indemnity Act does not apply to any construction contract entered into prior to January 1, 2011.

In Moore v. Home Depot USA, Inc., 352 F.Supp.3d 640 (M.D. La. 10/15/2018), the United States District Court for the Middle District of Louisiana held that the indemnity and insurance-procurement obligations created by a Maintenance Services Agreement (which required the contractor to provide materials, equipment, tools, and labor to perform services described in future work orders) entered into in August, 2010 (the “MSA”) are not subject to the Construction Anti-Indemnity Act even though the claims at issue were regarding performance of a work order (governed by the MSA) confected by the parties in 2015.

The Court acknowledged that because the MSA failed to state the time, place, or nature of the contractor’s required performance, the MSA is not itself a binding contract, but instead, the MSA and the 2015 work order combine to form the contract.  However, the Court stated that this does not mean that the date of the work order controls, reasoning that if the Louisiana legislature wanted work orders issued after a master service agreement to dictate whether indemnity and insurance-procurement obligations created by the master service agreement are subject to the Construction Anti-Indemnity Act, it would have included such language in the statute.  By comparison, the Court noted that while the Louisiana Oilfield Anti-Indemnity Act (La. R.S. 9:2780) contains a sub-section stating that it applies to master service agreements creating indemnity obligations incorporated into future work orders, the Construction Anti-Indemnity Act does not contain such language.

Accordingly, the Court concluded that the MSA contracting date – 2010 – controls. By the terms of the contract documents, the 2015 work order was both incorporated in and subject to the MSA, and although the 2015 work order created the contractor’s obligation to perform the work at issue, the 2010 MSA governed that performance and created the contractor’s indemnity and insurance-procurement obligations.  Because the parties confected the MSA in 2010, and the Construction Anti-Indemnity Act does not apply to prohibited clauses in construction contracts confected before January 1, 2011, the Construction Anti-Indemnity Act does not apply to the indemnity and insurance-procurement provisions in the MSA.