Is That Indemnification Provision Enforceable? Lessons From Fifteen Years of Case Law Applying Va. Code § 11-4.1

Article originally featured in the Virginia Lawyer, Vol. 74 No. 5 published by the Virginia State Bar.

It’s Wednesday night, and like most lawyers (perhaps a slight exaggeration), you and your esteemed colleagues are deep in a game of construction law jeopardy. Amid the fervor of the room, and noticing you are only slightly behind the leader, you select your next category—“Contract Terms” for $800. Your friend and moderator, channeling his best Alex Trebek, reads the statement, “a duty to make good any loss, damage, or liability incurred by another.”[1] The familiar melancholic tune begins to play, but it doesn’t matter. You know the answer, smash that red button with confidence, and state in the required interrogatory form: “What is indemnity?” At last, you take the lead, only to squander it on the next question.

For the construction lawyer, indemnification is not something you should gloss over. Rather, the practitioner must have a certain level of mastery over such terms to preserve their enforceability. Similarly, the litigator must understand the current legal landscape and whether an indemnification provision can be enforced or invalidated. For years, Uniwest took center stage in the discussions concerning contractual indemnification and the art of crafting an enforceable indemnification clause in a construction contract. But we now have fifteen years of additional case law to account for, both when negotiating contractual indemnification provisions and when litigating them. So, in the spirit of construction law jeopardy, select “Changes in the Law” for $1000, and let’s dig in.

Virginia’s Anti-Indemnification Statute—Va. Code § 11-4.1

First, a bit of a refresher. Va. Code § 11-4.1 states:

Any provision contained in any contract relating to the construction, alteration, repair or maintenance of a building, structure or appurtenance thereto, including moving, demolition and excavation connected therewith, or any provision contained in any contract relating to the construction of projects other than buildings by which the contractor performing such work purports to indemnify or hold harmless another party to the contract against liability for damage arising out of bodily injury to persons or damage to property suffered in the course of performance of the contract, caused by or resulting solely from the negligence of such other party or his agents or employees, is against public policy and is void and unenforceable.[2]

Most jurisdictions have a similar statute prohibiting certain indemnification provisions, and they usually fall into one of two categories.[3] Some allow indemnification of a party for its own negligence unless the indemnified party was solely negligent. Others prohibit any indemnification of a party for its own negligence, even if the indemnitee was not solely at fault because another party’s negligence contributed to the damage.

One could be forgiven for thinking that Virginia’s prohibition falls into the former category—only prohibiting indemnification where the indemnitee was solely negligent. But in Uniwest, the Supreme Court of Virginia held otherwise.

The Landmark Uniwest Decision

Uniwest Construction, Inc. v. Amtech Elevator Services marked a sea change in the interpretation and application of § 11-4.1.[4] The prime contractor, Uniwest, engaged subcontractor Amtech Elevators to perform the elevator work for the project.[5] During Amtech’s performance of its work, the scaffolding collapsed, leading to one injury and one fatality, both of whom were Amtech employees.[6] Lawsuits ensued.

Among other claims, Uniwest sought indemnification from Amtech pursuant to paragraph 10 of the subcontract, which stated, in pertinent part, “If any claims . . . be made or asserted, whether or not such claim(s) are based upon the negligence of Uniwest . . . , [Amtech] agrees to indemnify and save harmless Uniwest from any and all such claims.”[7] The Supreme Court of Virginia analyzed the indemnification provision through the lens of § 11-4.1 and reasoned that

[the] phrases ‘caused by’ and ‘resulting solely from’ are disjunctive in the statute, [which] voids any indemnification provision that reaches damage caused by the negligence of the indemnitee, even if the damage does not result solely from the negligence of the indemnitee. Thus, the issue is not whether an indemnification provision is written so broadly that it encompasses the negligence of parties in addition to the indemnitee. Rather, the issue is whether the provision is so broad that it indemnifies the indemnitee from its own negligence.[8]

Ultimately, the high Court determined that the indemnification provision obligated Amtech to indemnify Uniwest for Uniwest’s own negligence and “irreconcilably conflict[ed] with the public policy expressed in Code § 11-4.1, which voids any contractual provision ‘which . . . purports to indemnify or hold harmless [Uniwest] against liability for damage . . . caused by or resulting solely from the negligence of [Uniwest].’”[9]

Unpacking Uniwest—Significant Case Law Developments

In the wake of Uniwest, Virginia courts and federal courts applying Virginia law continued to develop the limits of indemnification provisions in construction contracts. Key decisions have fleshed out the permissible scope of indemnification provisions, the effect of other contractual measures like savings clauses, and the types of contract that are subject to § 11-4.1 to begin with.

One of the first decisions applying Uniwest took a permissive approach to the parties’ indemnification provision. In Snyder v. Waterford Falls Church II LLC, the circuit court acknowledged that the indemnification provision in question, like the one in Uniwest, potentially encompassed the indemnitee’s own negligence.[10] However, the court did not treat the provision as facially invalid because it included savings language limiting indemnification “to the fullest extent permitted by law.”[11] But take care—savings clauses like this should be considered unreliable based on more recent case law, as discussed below.

A year later, another circuit court invalidated indemnification provisions in three separate contracts at issue in Supchak v. Fuller Construction Corporation.[12] There, the language of the provision was similar to that in Uniwest and reached indemnification for the indemnitee’s own negligence. The provisions all included the same “fullest extent permitted by law” language that saved the provision in Snyder.[13] Even so, the Supchak court determined that the provisions were invalid. Critically, it did not matter that the damage at issue was not actually caused by the indemnitee; the facial breadth of the provision was fatal all the same.[14]

While the majority of decisions applying Uniwest have come from Virginia courts, the federal district courts sitting in the Commonwealth have also contributed to Virginia’s indemnification landscape. In particular, federal decisions have addressed what contracts fall within what contracts fall within § 11-4.1’s scope. In RSC Equipment Rental, Inc. v. Cincinnati Insurance Co., the district court held that a rental contract for equipment to be used in a construction project was not a “contract relating to construction” for purposes of § 11-4.1.[15] Applying the rationale of an unpublished opinion from the Fourth Circuit Court of Appeals,[16] the district court focused on the nature of the contract at issue, not its ultimate purpose.[17] The equipment might have been destined for a jobsite, but the contract itself was still essentially a rental agreement—not a construction contract. Section 11-4.1 did not apply.[18]

Prum v. Linde Gas North America LLC, another circuit court decision, provides an example of a carefully drafted indemnification provision that withstood Uniwest.[19] The contract required the “Vendor” to indemnify Linde Gas for “any occurrence arising in connection with Vendor’s or its employees’ or representatives’ performance or failure to perform under the Contract, breach of the Contract, violation of any Laws in performing under the Contract, or acts, omissions, or commission of any tort in performing under the Contract.”[20] Accordingly, the provision did not reach the indemnitee’s own negligence.[21]

Hensel Phelps Construction Co. v. Thompson Masonry Contractor, Inc. dealt with a construction contract for a project at Virginia Tech in the late 1990s.[22] The general contractor attempted to use the subcontractor’s alleged breach of indemnification provisions to avoid its breach of contract claims being barred by the applicable statute of limitations.[23] The Supreme Court of Virginia held that the provisions—though drafted before Uniwest—were nonetheless void under Uniwest.[24] The court was unsympathetic to the argument that its decision left contractors without recourse against subcontractors for persisting liabilities.[25]

The federal district court’s decision in Travelers Indemnity Co. v. Lessard Design, Inc. provides an especially helpful framework for analyzing indemnification provisions under § 11-4.1 and Uniwest.[26] In Travelers, an architect’s contract required it to indemnify the owner and developer against “any and all losses . . . relating to the services performed by the Architect.”[27] Travelers cited RSC and Carpenter in support of its argument that the design contract was not a construction contract, but the court determined that § 11-4.1 applied because the contract directly related to the construction of a building and gave the architect a supervisory role in ensuring that his plans were executed during the construction process.[28] The court went on to emphasize that the purpose of § 11-4.1—preventing injuries and keeping contractors from unfairly shifting the cost of the prime’s negligence to subcontractors with less bargaining power—favored voiding the indemnification provision.[29] Travelers instructs that an indemnification provision is void under § 11-4.1 if: (1) the underlying contract is a “contract relating to construction,” (2) the indemnifying party is a “contractor,” and (3) the provision reaches damage caused by the indemnitee’s own negligence.[30]

Soon after Travelers, a circuit court held that an indemnitee cannot rely on an indemnification provision to implead a third party when it is being sued solely for its own negligence. In Morris v. DSA Roanoke LLC, a subcontractor, DSA, was sued exclusively for its own negligence and sought to implead its sub-subcontractor, Thomas Builders, based on an indemnification agreement between them.[31] The court held that allowing DSA to do so would conflict with the spirit of § 11-4.1 because “DSA could only recover through the indemnification provision between it and Thomas Builders for damages caused by DSA’s own negligence.”[32] The issue was not the language of the provision itself, but DSA’s attempt to invoke it under circumstances barred by statute. Even if Thomas Builders had contributed to DSA’s negligence, Uniwest’s broad interpretation of § 11-4.1 prohibits indemnification for an indemnitee’s own negligence, in whole or in part.

Two more recent Virginia federal decisions further illustrate how the level of specificity in an indemnification clause can determine its enforceability. In Hellas Construction, Inc. v. Bayside Concrete, Inc., the plaintiff sought attorneys’ fees from its subcontractor under an indemnification provision.[33] Although the clause’s main text complied with Uniwest, a clarifying subparagraph stated that “provisions of the indemnification provided . . . shall not be construed to indemnify any Indemnitee for its sole negligence.”[34] The district court held that this language did not exclude Hellas’s contributory negligence, rendering the provision void.[35] Although the clarifying language was meant to respect the limits prescribed by Uniwest, it ultimately made the clause overly broad.

On the other hand, Sauer Construction, LLC v. QBE Insurance Corporation demonstrates how a lack of specificity can also invalidate an indemnification clause.[36] There, the provision required indemnification for any damages not arising from the indemnitee’s own “misconduct.”[37] The indemnitor argued that “misconduct” was narrower than negligence, meaning the provision might encompass the indemnitee’s own negligence.[38] The district court agreed, reasoning that there “are at least some types of negligence that would fall outside of ‘misconduct.’”[39] Because the clause did not specifically exclude all the indemnitee’s negligence, the court found it void under § 11-4.1.

Finally, the two most recent decisions address whether a savings clause can rescue an otherwise invalid indemnification provision under § 11-4.1. In Fortune-Johnson, Inc. v. QFS, LLC, the indemnification clause expressly violated § 11-4.1 by including indemnification for “the negligence of any indemnit[ee].”[40] Although the clause included savings language—“to the fullest extent permitted by law”—the Court of Appeals of Virginia rejected the argument that this reflected an intent to comply with § 11-4.1 or authorized reformation.[41] The court “decline[d] to step in and correct the overbreadth” of the contract, emphasizing that “neither Virginia law nor the subcontracts themselves authorize courts to “blue pencil” or otherwise rewrite the parties’ written agreements.”[42]

Conversely, in ZP No. 332, LLC v. Huffman Contractors, Inc., the federal district court allowed a savings clause to preserve the enforceable portions of the indemnification agreement.[43] The contract provided that the indemnitee would be indemnified “regardless of whether such claim, damage, loss[,] or expense is caused in part by a party indemnified hereunder.”[44] Although this blatantly violated § 11-4.1, the court relied on savings language to uphold the rest of the indemnification provision.[45] Specifically, the contract stated that “in a state that prohibits any part of the indemnity coverage contained herein, the Contractor shall provide the maximum indemnity coverage allowed by that state to each of the Indemnified Parties.”[46] It also provided that “[t]he invalidity of any part or provision of the Contract Documents shall not impair or affect in any manner the validity, enforceability, or effect of the remaining parts and provisions of the Contract Documents.”[47] Based on these clauses, the court held “that the voided sentence of the clause does not affect the rest of that clause’s validity, enforceability, and effect.”[48]

Navigating Current Law—Practical Guidance

The application of § 11-4.1, as interpreted by the Supreme Court of Virginia in Uniwest, illustrates the persisting confusion and lurking pitfalls for anyone involved in construction contracts in the Commonwealth. After 15 years, the state of the law continues to evolve. But several practical considerations emerge as common themes in the cases described above.

First, it’s important to recognize that § 11-4.1 only applies to provisions in construction contracts, which includes

any contract relating to the construction, alteration, repair or maintenance of a building, structure or appurtenance thereto, including moving, demolition and excavation connected therewith, or  . . . any contract relating to the construction of projects other than buildings.[49]

This part of § 11-4.1 reads rather broadly, but the case law demonstrates that its practical scope should not be taken for granted. As discussed, federal case law suggests that § 11-4.1 and Uniwest don’t always apply to contracts that might well be thought of as “relating to” construction, such as renting equipment for a construction project. Instead, the nature of the underlying contract and how it interacts with the purpose of § 11-4.1 are key considerations. It remains to be seen whether Virginia courts will adopt the reasoning of their federal counterparts in similar cases.

Assuming the relevant contract falls within § 11-4.1 and reaches an indemnitee’s own negligence, Uniwest and its progeny are lurking. Obviously, drafters who want an indemnification provision to be enforceable must draft with care. But a party more concerned with limiting potential exposure has options when faced with a provision that reaches too far. The party can point out the provision’s invalidity and negotiate more favorable terms; or, more cunningly, it can do nothing, taking some comfort in the knowledge that any attempt to demand indemnity could fail under the prevailing interpretation of § 11-4.1.

One should also consider the effect of a savings clause. If there’s one in the construction contract at issue, could it save an otherwise overbroad indemnification provision? When drafting a construction contract, does savings language provide any extra peace of mind? As the case law illustrates, the answers to such questions elude certainty. It is possible that a savings clause might keep a court from declaring the indemnification provision void, but judges have been more eager to disregard the savings clause and refuse to “blue pencil” the indemnification provision. And, as Hellas teaches, even language meant to be helpful might ultimately doom an indemnification provision if not carefully implemented. If a savings clause provides any security blanket, it’s a thin one.

* * *

Va. Code § 11-4.1, Uniwest, and the litany of relevant cases since make indemnification provisions in Virginia construction contracts an unpredictable landscape. It is essential that practitioners keep a critical eye on the language and scope of contractual indemnification clauses. Word choice and sentence structure are critical to the outcome. Choose wisely.

[1] Indemnity, Black’s Law Dictionary (11th ed. 2019)
[2] Va. Code § 11-4.1 (emphasis added).
[3] See Construction Anti-Indemnity Statutes, Saxe, Doernberger & Vita, P.C. (Sep. 19, 2024), https://www.sdvlaw.com/surveys/construction-anti-indemnity-statutes/.
[4] 699 S.E.2d 233, 280 Va. 428 (2010).
[5] 280 Va. at 435.
[6] Id. at 436–37.
[7] Id. at 441–42 (emphasis added).
[8] Id. at 442 (emphasis added).
[9] Id.
[10] 2012 Va. Cir. LEXIS 429, at *11 (Fairfax Co. 2012).
[11] Id.
[12] 86 Va. Cir. 517, 521–23 (Chesapeake Co. 2013).
[13] Id. at 521–22.
[14] Id. at 522–23.
[15] 321 F. Supp. 3d 631 (W.D. Va. 2014).
[16] Carpenter Insulation & Coatings Co. v. Statewide Sheet Metal & Roofing, Inc., No. 90-2426, 1991 U.S. App. LEXIS 14267 (4th Cir. July 9, 1991) (holding that a sales agreement for roofing materials was not a construction contract within the scope of § 11-4.1).
[17] 321 F. Supp. at 486–87.
[18] Id.
[19] 2016 Va. Cir. LEXIS 106 (Hopewell Co. 2016).
[20] Id. at *8.
[21] Id.
[22] 791 S.E.2d 734, 292 Va. 695 (2016).
[23] 292 Va. at 703.
[24] Id. at 704–06. The court also rejected the contractor’s attempt to characterize as “indemnification” provisions other provisions that might not have been void under Uniwest. Id.
[25] Id. at 706–07.
[26] 321 F. Supp. 3d 631 (E.D. Va. 2018).
[27] Id. at 634.
[28] Id. at 636–38.
[29] Id. at 637–38.
[30] Id. at 636–39.
[31] 102 Va. Cir. 204 (Roanoke Co. 2019).
[32] Id. at 205.
[33] 2019 U.S. Dist. LEXIS 234348 (E.D. Va. Mar. 12, 2019).
[34] Id. at *8 (emphasis added).
[35] Id. at *9–10.
[36] 2024 U.S. Dist. LEXIS 223199 (W.D. Va. Dec. 10, 2024).
[37] Id. at *14.
[38] Id. at *15.
[39] Id. at *15–16.
[40] 2025 Va. App. LEXIS 241093, *6 (Feb. 25, 2025).
[41] Id.
[42] Id. at *9.
[43] 2025 U.S. Dist. LEXIS 114614 (E.D. Va. June 16, 2025).
[44] Id. at *5.
[45] Id. at *5–6.
[46] Id. at *6.
[47] Id.
[48] Id.
[49] Va. Code § 11-4.1 (emphasis added).