Indemnification Caps by State: How 50 States and D.C. Read the Same Clause

The short answer

Indemnification clause enforceability by state turns on three things: whether an anti-indemnity statute (construction in most states, oil and gas in producing states) voids part of the clause, whether the state's courts demand specific language before a clause reaches the indemnitee's own negligence, and which public-policy limits apply whatever the contract says. The same "indemnify and hold harmless" paragraph can be void for the indemnitee's own negligence in a Delaware, Illinois or New York construction contract, void to the extent of the indemnitee's fault in Texas, and untouched by the Georgia construction statute unless the indemnitee was solely at fault. The text survives a copy-paste. The obligation often does not.

Reviewed and corrected on 6 October 2026. This is general information, not legal advice; check the cited statute or opinion before relying on it.

Official text, as of 6 October 2026

Tex. Ins. Code § 151.102, read on the Texas Legislature's statutes site on 6 October 2026. Subject to the exception in § 151.103, a provision in a construction contract, or in an agreement collateral to or affecting one, is:

"void and unenforceable as against public policy to the extent that it requires an indemnitor to indemnify, hold harmless, or defend a party ... against a claim caused by the negligence or fault ... of the indemnitee"

Four other sections in the same chapter decide how far that goes:

• Scope, § 151.101. The subchapter applies to a construction contract for a project for which an indemnitor is provided or procures insurance subject to chapter 151 or Title 10 of the Insurance Code.
• Employee-injury exception, § 151.103. Section 151.102 does not apply to a provision that requires a person to indemnify, hold harmless or defend another party, or a third party, against a claim for the bodily injury or death of an employee of the indemnitor, its agent, or its subcontractor of any tier.
• Exclusions, § 151.105. Among other things, the subchapter does not affect agreements subject to Civil Practice and Remedies Code chapter 127 (oilfield), and it leaves alone indemnity provisions about a single family house, townhouse, duplex or related land development, or a public works project of a municipality. Additional-insured provisions are separately limited by § 151.104.
• Nonwaiver, § 151.151. "A provision of this chapter may not be waived by contract or otherwise."

The chapter was added by Acts 2011 (H.B. 2093), effective January 1, 2012.

What changed in 2026: we found no change to § 151.102 in the text we read. The 2025 and 2026 changes we did find are in the next section.

What changed in 2025 and 2026

• Louisiana, oilfield. Acts 2026, No. 328 (H.B. 941) amended La. R.S. 9:2780(B), (C), (G), (H) and (I) and added subsection (J). New subsection H sets a process for additional-insured coverage in oilfield agreements: a written request for a premium quote, a quote from the insurer, and direct payment by the party seeking coverage. The additional insured carries deductibles or retentions up to $100,000. Subsection H(5) says the ban on defense and indemnity in subsection B is unchanged. The enrolled act on the Louisiana Legislature's site states no separate effective date, so confirm it there.
• Oregon, public design contracts. Senate Bill 1575 (2024) changed ORS 30.140 for agreements entered into or renewed from January 1, 2025 through December 31, 2034. A public body may not require an architect, engineer, surveyor or related provider to defend it against a professional negligence claim, except to the extent the provider's fault is determined or settled and not beyond its proportionate fault. Design-build contracts are outside the section. Section 2 of the bill removes both of those features for agreements entered into or renewed on or after January 1, 2035 (enrolled bill).
• Texas. The history line for Civil Practice and Remedies Code § 130.002 (design professionals) lists an amendment by Acts 2025 (S.B. 687), effective September 1, 2025, and the history line for Business and Commerce Code § 272.001 (choice of law in construction contracts) lists one by Acts 2025 (H.B. 2960), effective September 1, 2025. We did not verify which subsections those bills changed. Check the Texas statutes site.
• Pending bills. Pennsylvania House Bill 1541 (2025-2026 session) would add rules making terms in nonresidential construction contracts void and unenforceable where they indemnify a party for its own negligence, in whole or in part. Its bill page lists House passage on April 15, 2026 (200-1), a Senate Banking and Insurance Committee report on June 9, 2026, and, as its last action when we read it on 6 October 2026, "Removed from table, Sept. 28, 2026" in the Senate. It was not enacted at that point, so the Pennsylvania row below still describes current law; check the page before relying on it. South Carolina Senate Bill 395 (2025) would amend § 32-2-10; its bill page lists only introduction on February 26, 2025 and referral to the Judiciary Committee, with no later action.

We did not find an enacted 2025 or 2026 change to the general construction statutes in the table beyond these items. That describes what we read, not a survey of every session law.

The same paragraph, fifty different answers

Picture one clean, broad indemnity paragraph that lives in a Word template and gets pasted into every contract. In a New York or Illinois building contract, a statute can void it to the extent it covers the owner's own negligence. In Texas, the express-negligence rule asks whether the words name the indemnitee's own negligence, and Insurance Code chapter 151 then asks whether the project is covered and which exceptions apply. In Georgia, the construction statute reaches only the indemnitee's sole negligence. Treating "indemnify and hold harmless" as a portable phrase is a common drafting mistake, and it is easy to make because the words look the same in every state.

The doctrine turns on three axes. Below: the statutes, the cases we read, the limits you cannot contract around, and the drafting mistakes that show up when a clause has to do real work. Statute text in this post was read in October 2026 from state legislature sources or a code publisher's copy of them. Where we did not verify something, the post says so.

TL;DR

• Indemnification caps are not uniform across the United States. The same clause can be void for the indemnitee's own negligence (Delaware, Illinois and New York construction contracts), void to the extent of the indemnitee's fault (Texas), or reached only when the indemnitee was solely at fault (Georgia, Tennessee, Virginia).
• Three axes drive the variance: express-negligence and clear-language rules (Texas is the strictest we read), anti-indemnity statutes (we read a general construction statute in 42 states, plus D.C., and oilfield statutes in several producing states), and public-policy limits.
• Texas requires the intent to cover the indemnitee's own negligence to be "specifically stated within the four corners of the contract" (Ethyl Corp., 1987) and conspicuous (Dresser, 1993). Courts in New York, Pennsylvania, Colorado, Tennessee and California use "unequivocal", "clear and unequivocal" or "clear and explicit" wording. Texas rejected the "clear and unequivocal" test in Ethyl in favor of express negligence.
• Statutes differ in what they void. Some void only the indemnitee's sole negligence. Others void indemnity for any negligence or fault of the indemnitee, and many of those say the indemnitor can still be held to its own share. Florida requires a monetary cap. The table below sorts all 50 states and D.C. by the text of each statute.
• "Hold harmless" and "indemnify" are treated as one obligation in some decisions and as two in others (Queen Villas, California, reads them as two). That difference changes pleading, damages and the duty to defend.
• A clause that fails one of these tests can look fine until someone tenders a claim.

Part of our all-50-states legal reference series.

The three axes states actually vary on

Before the table, the doctrine. Most differences collapse to three questions.

1. Does the state require express negligence or clear language?

The express-negligence rule: if a party wants to be indemnified for the consequences of its own negligence, the contract must say so in specific terms. "All claims arising out of the work" is not enough; the indemnitor must be put on notice that it is assuming the indemnitee's fault.

Texas is the clearest example. In Ethyl Corp. v. Daniel Construction Co., 725 S.W.2d 705 (Tex. 1987), the Texas Supreme Court adopted the rule: parties who want to shift the indemnitee's own negligence "must express that intent in specific terms," and the intent "must be specifically stated within the four corners of the contract." The court rejected the older "clear and unequivocal" test, and it held that an indemnitee seeking indemnity for negligence it shares with the indemnitor must meet the express-negligence test too. In Dresser Industries, Inc. v. Page Petroleum, Inc., 853 S.W.2d 505 (Tex. 1993), the court held that the fair-notice requirements apply to both indemnity agreements and releases, and that the provisions in that case were not conspicuous as a matter of law.

Other states use different words, and each of these opinions is quoted for what it says:

• Tennessee. In Kroger Co. v. Giem, 215 Tenn. 459, 387 S.W.2d 620 (1964), the court stated the rule that there can be no recovery where indemnitor and indemnitee were both negligent unless the contract provides for it "by clear and unequivocal terms," and that general words will not be read as expressing that intent.
• Pennsylvania. In Perry v. Payne, 217 Pa. 252 (1907), the court said indemnity against the indemnitee's own negligence is not presumed unless the contract "puts it beyond doubt by express stipulation," and that "no inference from words of general import can establish it."
• Colorado. Williams v. White Mountain Construction Co., 749 P.2d 423 (Colo. 1988), says indemnity contracts holding indemnitees harmless for their own negligence "must contain clear and unequivocal language to that effect." For construction agreements, subsection (6) of C.R.S. § 13-21-111.5 now sits on top of that rule.
• New York. Levine v. Shell Oil Co., 28 N.Y.2d 205 (1971), recites that contracts "will not be construed to indemnify a person against his own [active] negligence unless such intention is expressed in unequivocal terms," and then found the intent in a clause covering "all claims, suits, loss, cost and liability." In construction, General Obligations Law § 5-322.1 also voids the promise where it covers the promisee's negligence.
• California. Rossmoor Sanitation, Inc. v. Pylon, Inc., 13 Cal. 3d 622 (1975), says an agreement to indemnify against the indemnitee's own negligence "must be clear and explicit and is strictly construed against the indemnitee."

For every other state: Not verified in our October 2026 review. Check your state court system's opinion pages or Google Scholar for your state's cases on indemnity for the indemnitee's own negligence.

2. Is there an anti-indemnity statute for this industry?

Construction is the big one. Reading each section's own text, we sort the general construction statutes into three groups. The groups describe the statutory text. Court decisions applying it can differ.

• Sole negligence only. The text voids indemnity for the indemnitee's sole negligence: Alaska, Arizona (private contracts), Georgia (§ 13-8-2(b)), Hawaii, Idaho, Indiana, Maryland, Michigan (private contracts), New Jersey, South Carolina, South Dakota, Tennessee, Virginia and West Virginia, and D.C. for a subcontractor's promise. California's § 2782(a) is in this group for sole negligence or willful misconduct, and it adds active-negligence limits in public-agency and private-owner contracts and a negligence-based limit for subcontractor indemnities in residential construction-defect claims.
• Any negligence or fault of the indemnitee. The text reaches the indemnitee's negligence or fault without a "sole" limit: Arkansas, Colorado, Connecticut, Delaware, Illinois, Iowa, Kansas, Kentucky (a one-way rule that protects the party performing the work), Louisiana, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Rhode Island, Texas and Utah. Massachusetts and New Hampshire void indemnity for harm not caused by the promisor or its people. Many of these statutes expressly preserve indemnity up to the indemnitor's own share of fault (Arkansas, Colorado, Minnesota, Montana, New Mexico, Oklahoma and Oregon say so in the text).
• Other models. Florida voids indemnity for damages caused "in whole or in part" by the indemnitee unless the contract has a monetary limit that bears a reasonable commercial relationship to the contract. Washington voids sole-negligence indemnity and makes concurrent-negligence indemnity valid "only to the extent of the indemnitor's negligence and only if the agreement specifically and expressly provides therefor."

Some states have no statute of that kind that we could confirm, or a narrow one: Alabama (road, bridge and design-professional statutes), Maine and Vermont (not verified), Nevada (residential constructional-defect claims only), North Dakota (its § 9-08-02.1 voids only a clause making the contractor liable for the owner's plan and specification errors), Pennsylvania (architects, engineers and surveyors), Wisconsin (a statute the Court of Appeals read not to reach indemnity clauses) and Wyoming (wells and mines only).

Indiana readers searching for construction indemnification clauses should note that Ind. Code § 26-2-5-1 covers construction or design contracts other than highway contracts and voids indemnity for the promisee's "sole negligence or willful misconduct." The statute adds that "sole negligence" does not include vicarious liability, imputed negligence or assumption of a nondelegable duty.

Oil and gas adds another layer in producing states. Louisiana's oilfield statute (La. R.S. 9:2780) voids indemnity to the extent it covers the indemnitee's "sole or concurrent negligence or fault (strict liability)" for death or bodily injury. Texas has Civil Practice and Remedies Code § 127.003, which voids indemnity for the "sole or concurrent negligence" of the indemnitee in agreements pertaining to wells for oil, gas or water or to mines. New Mexico (§ 56-7-2) and Wyoming (§ 30-1-131) run their own.

3. What public-policy limits apply no matter what the contract says?

We verified some of these and not others, so each bullet says which.

• Intentional misconduct. New York's Court of Appeals held in Austro v. Niagara Mohawk Power Corp., 66 N.Y.2d 674 (1985), that indemnification agreements are unenforceable as against public policy "only to the extent that they purport to indemnify a party for damages flowing from the intentional causation of injury." Several statutes also name willful misconduct: Alaska, California, Hawaii and Indiana void indemnity for the promisee's sole negligence or willful misconduct, and Kansas reaches "negligence or intentional acts or omissions." For the other states, Not verified in our October 2026 review. Check your state court system's opinion pages or Google Scholar.
• Gross negligence. There is no single national rule, and the cases people cite are often about something else. In New York, Kalisch-Jarcho, Inc. v. City of New York, 58 N.Y.2d 377 (1983), says an exculpatory clause "will not apply to exemption of willful or grossly negligent acts." That case concerned a no-damages-for-delay clause. For indemnity, Austro went the other way: the court distinguished exculpatory clauses, which "deprive a contracting party of the right to recover," from indemnity contracts that "simply shift the source of compensation," and it held that the indemnitee could recover for its liability from the indemnitor, including liability from the indemnitee's gross negligence, because no intentional harm was alleged. In California, City of Santa Barbara v. Superior Court, 41 Cal. 4th 747 (2007), held that a release of liability for future gross negligence in recreational programs is unenforceable. That was a release case, and the court limited its ruling to recreational activities. We did not verify whether California enforces an indemnity for the indemnitee's gross negligence. Florida's construction statute, by contrast, says a covered indemnity "shall not include claims of, or damages resulting from, gross negligence, or willful, wanton or intentional misconduct of the indemnitee" (Fla. Stat. § 725.06(1)).
• Punitive damages, criminal acts and statutory penalties. Florida's § 725.06(1) also excludes damages for the indemnitee's "statutory violation or punitive damages" unless caused by the indemnitor's side. For other states, Not verified in our October 2026 review. Check your state court system's opinion pages or Google Scholar.
• What happens to the rest of the clause. The rules differ. Arkansas's statute says a prohibited clause "is severable" and does not make the whole contract unenforceable (Ark. Code § 4-56-104). In New York, Itri Brick & Concrete Corp. v. Aetna Casualty & Surety Co., 89 N.Y.2d 786 (1997), held that General Obligations Law § 5-322.1 "makes no attempt to salvage" the part of a full-indemnity agreement that would cover the subcontractor's negligence only, and applied the statute to the agreements in their entirety where the general contractor was found negligent.

The 50-state table, plus D.C.

Every row below with a statute comes from the statute's own text as we read it in October 2026; Maine and Vermont are marked not verified. "Reach" says what the text voids. Where we could not verify a point, the cell says so. Mississippi was read from a reconstructed copy of the code; confirm it on the state site. Pennsylvania and Arkansas were read on a code publisher's site, and Georgia and Tennessee on Justia.

Statutes change, and the "Reach" column compresses real nuance: effective dates, exclusions and definitions sit in each section. Read the section before a clause closes. For Pennsylvania, the pending House Bill 1541 (above) could change the row. The Saxe Doernberger & Vita 50-state anti-indemnity survey is a useful cross-check; its current page is at sdvfenchurch.com (the September 2024 edition).

Drafting failures that show up at summary judgment

The map above tells you what the rules are. The hard part is recognizing the pattern in a clause already in your inbox.

Single-paragraph clauses that fail express-negligence

"Contractor shall indemnify Owner from and against all claims, damages, losses and expenses arising out of or resulting from performance of the Work" looks comprehensive. Under Ethyl, a clause like that does not reach Owner's own negligence in Texas. To pick it up, the clause must say so, conspicuously. The standard fix is a second sentence: "INCLUDING CLAIMS CAUSED BY THE NEGLIGENCE OF OWNER, IN WHOLE OR IN PART," in bolded or capitalized text. Dresser makes conspicuousness a separate fair-notice test that applies on top of express negligence.

That fix has a limit. In a covered Texas construction contract, Insurance Code § 151.102 voids the promise to the extent it covers the owner's fault, so the capitalized sentence will not save it. It still matters for claims by the indemnitor's own employees (§ 151.103), on projects outside the chapter (§ 151.105) and in non-construction contracts.

"Hold harmless" treated as separate from "indemnify"

Most clauses use the two phrases as a pair. In Queen Villas Homeowners Ass'n v. TCB Property Management, 149 Cal. App. 4th 1 (2007), a California Court of Appeal asked whether the words are synonymous and answered no: "'Indemnify' is an offensive right ... 'Hold harmless' is defensive: The right not to be bothered by the other party itself seeking indemnification." Drafters who want a duty to defend should name it explicitly: "duty to defend is independent of and broader than the duty to indemnify." In Crawford v. Weather Shield Mfg., Inc., 44 Cal. 4th 541 (2008), the California Supreme Court held that, under the particular subcontract, the subcontractor owed the builder a defense of claims alleging the subcontractor's negligence even though a jury later found the subcontractor not negligent.

Can an indemnity cap equal the required insurance amount?

A frequent vendor clause says: "Indemnification shall not exceed the limits of Contractor's general liability insurance." Read literally, the cap floats with whatever the insurer pays, so it shrinks if the insurer denies coverage on an exclusion. A stated dollar cap, or a multiple of contract value, with insurance as a funding source, avoids that.

Some statutes tie permitted indemnity to insurance on purpose, so in those states an insurance-linked cap is the lawful route. Texas Civil Practice and Remedies Code § 127.005 lets oilfield parties support an indemnity with written insurance, limited to the agreed coverage and limits for a mutual obligation and to $500,000 for a unilateral one. Louisiana's construction statute enforces indemnity up to the insurance proceeds where the contract requires insurance and the indemnitor recovered the cost in the price (La. R.S. 9:2780.1(I)(1)). Missouri limits an insurance-backed indemnity to the required coverage and limits (Mo. Rev. Stat. § 434.100(2)(8)). Kansas does the same for insurance-supported indemnity (K.S.A. 16-121(d)(6)).

Forgetting the additional-insured endorsement

In construction and vendor contracts, the indemnification clause and the additional-insured endorsement do related but different work. The endorsement gives the indemnitee direct rights against the indemnitor's insurer; the clause gives a contractual right against the indemnitor. Several statutes limit additional-insured coverage in parallel with the indemnity: Texas § 151.104, Kansas (K.S.A. 16-121(c)), Louisiana (La. R.S. 9:2780.1(C) and (I)(2)), New Mexico (§ 56-7-1(F)), Colorado (C.R.S. § 13-21-111.5(6)(d)) and D.C. (§ 27A-202(b)). A clause that survives the indemnity-side analysis can still fail if the endorsement reaches too far. Read both.

Survival and notice

State in the clause whether it survives termination, so nobody has to argue about it later. A clause that does not specify notice and tender procedures invites a fight about whether the indemnitor's defense rights were preserved. Fix: a survival sentence, a notice-period sentence, and a sentence allocating control of the defense.

Where the law is moving

Choice-of-law clauses do less work than drafters think. Several statutes address the point directly. For Texas real property, Business and Commerce Code § 272.001(b) voids a construction-contract provision that makes the contract or any conflict under it subject to another state's law, courts or arbitration, and Insurance Code § 151.151 bars waiver of chapter 151. Arkansas (§ 4-56-104(c)), Oklahoma (15 O.S. § 221(E)), Kansas (K.S.A. 16-121(e)), Colorado (C.R.S. § 13-21-111.5(6)(g)) and Louisiana (La. R.S. 9:2780.1(D)) have comparable text. If the work is in one of those states, you are drafting to that state's law on indemnification whether the contract says so or not. See our choice-of-law breakdown for the wider picture.

Additional-insured rules are being written into statute. Louisiana's 2026 amendment creates a statutory path for oilfield additional-insured coverage while leaving the indemnity ban in place. Texas, Kansas, New Mexico and the other statutes above already limit additional-insured coverage where the indemnity would be void.

A clause limited to the indemnitor's own fault matches the safe-harbor text. Arkansas, Colorado, Minnesota, Montana, New Mexico, Oklahoma and Oregon expressly preserve indemnity to the extent of the indemnitor's fault. A clause drafted that way fits those provisions. It will not cover the indemnitee's own negligence anywhere those statutes apply.

A defensible multi-state sample clause

Strip the fluff. A clause that is easy to localize on top of:

Indemnification. To the fullest extent permitted by law, Contractor shall indemnify, defend, and hold harmless Owner and Owner's officers, directors, employees, and agents from and against all third-party claims, damages, losses, and expenses (including reasonable lawyers' fees) arising out of or resulting from the performance of the Work, INCLUDING CLAIMS CAUSED BY THE NEGLIGENCE OF OWNER, IN WHOLE OR IN PART, BUT ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. Contractor's obligations under this Section do not extend to claims arising from Owner's gross negligence, willful misconduct, or fraud. Duty to defend. The duty to defend is independent of and broader than the duty to indemnify and is triggered upon written tender. Cap. Contractor's aggregate liability under this Section shall not exceed the greater of two times the Contract Price or $5,000,000; Contractor's insurance is a funding source for these obligations and does not cap them. Survival. This Section survives termination of the Agreement.

Walk it: line one is the base obligation. In the states that void indemnity for the indemnitee's fault, it holds only for Contractor's own share (Colorado's C.R.S. § 13-21-111.5(6)(c) is one example). The capitalized sentence is aimed at Texas's express-negligence and fair-notice rules, Ethyl and Dresser; it does not save a clause where Insurance Code § 151.102 applies, except for employee-injury claims under § 151.103 and projects outside the chapter. In New York, General Obligations Law § 5-322.1 voids a promise to indemnify Owner for Owner's own negligence, and under Itri Brick the statute can take down the agreement in its entirety when the owner or general contractor is found negligent. The gross-negligence carve-out is a conservative drafting choice. No rule in every state requires it: Austro enforced an indemnity for gross negligence in New York, while Florida's § 725.06(1) requires the exclusion. The duty-to-defend sentence tracks the contractual duty to defend that Crawford enforced in California. The cap addresses the floating-insurance trap. The survival sentence makes survival explicit.

For oilfield work in Louisiana, Texas, Wyoming, or New Mexico, this clause needs an additional oilfield-statute carve-out and usually a mutual-indemnity restructure. For construction work in a state whose statute reaches the indemnitee's own negligence (for example Texas, New York, Illinois, Delaware and the others in the "any negligence or fault" group above), replace the own-negligence sentence with indemnity limited to the extent caused by Contractor's negligence. In a sole-negligence state such as Georgia or Tennessee, the statute alone does not require that change.

The cases a drafter should know

Every case below was read for this post, and each is listed for what it holds.

• Ethyl Corp. v. Daniel Construction Co., 725 S.W.2d 705 (Tex. 1987). Adopted Texas's express-negligence rule: the intent to indemnify the indemnitee for its own negligence must be specifically stated within the four corners of the contract, including for concurrent negligence. The court rejected the "clear and unequivocal" test in favor of express negligence.
• Dresser Industries, Inc. v. Page Petroleum, Inc., 853 S.W.2d 505 (Tex. 1993). Applied the fair-notice requirements to releases as well as indemnity agreements. The provisions in that case were not conspicuous as a matter of law.
• Levine v. Shell Oil Co., 28 N.Y.2d 205 (1971). Recites New York's requirement of unequivocal terms for indemnity against the indemnitee's own negligence and finds the intent in broad "all claims" language.
• Itri Brick & Concrete Corp. v. Aetna Casualty & Surety Co., 89 N.Y.2d 786 (1997). Full-indemnity agreements are unenforceable under General Obligations Law § 5-322.1 where the promisee is actually found negligent, and the statute does not salvage the lawful part.
• Austro v. Niagara Mohawk Power Corp., 66 N.Y.2d 674 (1985). An indemnity is unenforceable on public-policy grounds only to the extent it covers the intentional causation of injury. Distinguishes exculpatory clauses, which Kalisch-Jarcho limits for gross negligence.
• Kroger Co. v. Giem, 215 Tenn. 459, 387 S.W.2d 620 (1964). Concurrent-negligence indemnity requires "clear and unequivocal terms" in Tennessee, and general words do not satisfy it.
• City of Santa Barbara v. Superior Court, 41 Cal. 4th 747 (2007). A release of future gross negligence in recreational programs is unenforceable. The case concerns a release and says nothing about indemnity.
• Aluma Systems Concrete Construction of California v. Nibbi Bros., 2 Cal. App. 5th 620 (2016). The allegations in the underlying lawsuit are not determinative of a contractor's claim for contractual indemnity, so a demurrer based on those allegations was reversed.
• Queen Villas, 149 Cal. App. 4th 1 (2007), and Crawford, 44 Cal. 4th 541 (2008). The hold-harmless and duty-to-defend points above.
• Gerdmann v. United States Fire Insurance Co., 119 Wis. 2d 367, 350 N.W.2d 730 (Ct. App. 1984). Wisconsin's construction statute on tort-liability limits (then § 895.49, now § 895.447) did not void an indemnity clause.

If a counterparty pushes for broad mutual indemnification, a clause limited to the indemnitor's own fault is the version that fits the share-limited statutes above, and it can be traded against a tighter cap and a defined duty-to-defend trigger.

A practical drafting checklist

1. Identify the governing law and the place of performance before you write a word. A clause that works in one state's statute may be void in another's, and some statutes override the governing-law clause.
2. Check for an applicable anti-indemnity statute (construction, oilfield, sometimes design professionals). Draft to the statute, not to the template.
3. Decide whether the clause must indemnify the indemnitee for its own negligence. If yes, and the state demands express language, write it. If no, say so explicitly.
4. Carve out, conspicuously, the public-policy exceptions you choose to carve out (intentional misconduct, fraud, gross negligence). Add a severability sentence.
5. Separate the duty to defend from the duty to indemnify. Name both. Specify triggers, who controls counsel, and consent to settle.
6. Set the cap explicitly, and check whether your state's statute has an insurance-backed route.
7. Add notice, tender, and survival sentences.
8. Pressure-test against the additional-insured endorsement if one exists. The two have to live together.

FAQ

Does indemnification mean the same thing in every state?

No. The clause text is portable but the obligation is not. The same paragraph can be void for the indemnitee's own negligence in a Delaware, Illinois or New York construction contract, void to the extent of the indemnitee's fault in Texas, and reached only for sole negligence in Georgia. Three variables drive the difference: whether the state requires specific language, whether an anti-indemnity statute applies, and which public-policy limits the state will not let you waive.

What is an anti-indemnity statute?

It is a state law that voids part or all of an agreement to indemnify a party for its own negligence or fault, most often in construction contracts. We read a general construction statute in 42 states and D.C.; the table above sorts them. Several producing states have a separate oilfield statute (Louisiana, Texas, New Mexico and Wyoming among them). Some statutes void only the indemnitee's sole negligence. Others void indemnity for any of the indemnitee's negligence or fault.

What are the anti-indemnity statutes by state?

See the table above. It lists the statute for each state and D.C., what the text voids, and the exceptions we read. Where a state's rule was not verified, the row says so.

Does Texas Insurance Code chapter 151 apply to employee injury claims?

No. Section 151.103 provides that § 151.102 does not apply to a provision that requires a person to indemnify, hold harmless or defend another party, or a third party, against a claim for the bodily injury or death of an employee of the indemnitor, its agent or its subcontractor of any tier. The clause still has to satisfy the express-negligence and fair-notice rules from Ethyl and Dresser.

What is the Texas oilfield anti-indemnity act?

Civil Practice and Remedies Code chapter 127. Section 127.003 voids a covenant, promise or agreement in an agreement pertaining to a well for oil, gas or water or to a mine for a mineral if it purports to indemnify a person against loss or liability for damage caused by the "sole or concurrent negligence" of the indemnitee, its agent or employee, or an individual contractor directly responsible to the indemnitee, arising from personal injury or death, property injury or related loss. Section 127.005 takes insurance-backed indemnity out of the chapter, subject to its limits.

Which states require express-negligence language?

Texas is the strictest of the states we read: Ethyl adopted the express-negligence test and rejected the "clear and unequivocal" standard. Courts in Tennessee (Kroger v. Giem), Pennsylvania (Perry v. Payne), Colorado (Williams), New York (Levine) and California (Rossmoor) use "unequivocal", "clear and unequivocal", "express stipulation" or "clear and explicit" wording. For every other state, Not verified in our October 2026 review. Check your state court system's opinion pages or Google Scholar.

Can you indemnify someone for gross negligence?

It depends on the state and on the kind of clause. In New York an exculpatory clause cannot excuse gross negligence (Kalisch-Jarcho), but an indemnity agreement is unenforceable only to the extent it covers the intentional causation of injury (Austro). California refuses to enforce a release of future gross negligence in recreational programs (City of Santa Barbara); we did not verify the California rule for indemnity. Florida's construction statute excludes gross negligence and willful, wanton or intentional misconduct of the indemnitee from a covered indemnity. For other states, Not verified in our October 2026 review. Check your state court system's opinion pages or Google Scholar.

What is the difference between "indemnify" and "hold harmless"?

In many clauses they read as one obligation: pay for the loss. A California Court of Appeal treated "hold harmless" as a separate defensive right not to be sued for indemnity (Queen Villas). Drafters who want a standalone duty to defend should name it explicitly.

Does a choice-of-law clause get around an anti-indemnity statute?

Not in the states whose statutes say otherwise. Texas voids a clause subjecting a construction contract for Texas real property to another state's law (Bus. & Com. Code § 272.001) and bars waiver of chapter 151 (Ins. Code § 151.151). Arkansas, Oklahoma, Kansas, Colorado and Louisiana have similar statutory text. For other states, check the statute.

How many states have construction anti-indemnity statutes?

Counts differ by definition. Reading each section's text, we found a general construction statute in 42 states (plus one in D.C.), and a narrower statute in Alabama, Nevada, North Dakota, Pennsylvania, Wisconsin and Wyoming. Maine and Vermont: Not verified in our October 2026 review.

Should an indemnity cap be tied to insurance limits?

As a default, a stated dollar figure or a multiple of contract value is safer, because a cap that floats with the indemnitor's insurance shrinks when the insurer denies coverage. In Texas oilfield, Louisiana construction, Missouri and Kansas, a statute expressly ties permitted indemnity to insurance, so an insurance-linked cap can be the lawful route there (see the section above).

Closing thought

Indemnification looks uniform on the page and behaves differently in court because statutes, case law and public-policy limits each cut in a different place. The map looks chaotic at first and becomes navigable once you ask three questions in order: what does the statute void, what language does the court demand, and what can no contract shift. Most failures are the same drafting mistakes recurring across industries.

For related state-by-state coverage, see Choice-of-Law Clauses That Quietly Fail: A State-by-State Breakdown, Liquidated Damages Enforceability by State, Attorneys' Fees Provisions by State, and Jury Trial Waivers Enforceability by State. All of these sit in our 50-state legal reference series.

For the US statutes, regulations and court rules these laws sit in, see the US primary law API.

Arshita Anand

Co-Founder & CEO · Attorney

Arshita leads product and strategy at Vaquill AI, the US primary law data API. As an attorney, she decides which law we carry, how each section is sourced and cited, and what legal AI and compliance teams need from the data.