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VI. Indemnity Claims

1. Express Indemnity
2. Implied Indemnity/Implied Contribution
3. Contribution
4. Third-Party Beneficiary

A. Express Indemnity

In the commercial context, Alaska courts enforce written indemnity agreements, regardless of the comparative fault of the parties. In other words, the parties to a contract can agree that one party or the other will be responsible for damages arising out of the performance of the contract. The Alaska courts will enforce an indemnity clause as reasonably construed, even if the provision does not specify that the indemnitee is entitled to recover for liability resulting from its own negligence. If the reasonable construction dictates that the clause provides coverage for the indemnitee's own negligence, it is irrelevant whether or not the indemnitor was also negligent. Duty Free Shoppers Group Ltd. v. State, 777 P.2d 649, 652 (Alaska 1989).

However, there is a statutory exception in the area of construction contracts. Where there is a construction contract, any contractual provision that has the effect of indemnifying a person for that person's sole negligent or willful misconduct is against public policy and void. AS 45.45.900; Hoffman Const. Co. of Alaska v. U.S. Fabrication & Erection, Inc., 32 P.3d 346, 354 (Alaska 2001)(requires that such clauses not be enforced if they serve to indemnify the indemnitee from its own sole negligence or willful misconduct).

B. Implied Indemnity/Implied Contribution

Even where there is not an express indemnity agreement, a party that is not at fault can recover damages it has paid from another party who is at fault under the doctrine of implied indemnity. Alaska allows implied indemnity by a non-negligent party against the party primarily responsible, for example, in a product liability action. Koehring Mfg. Co. v. Earthmovers of Fairbanks, Inc., 763 P.2d 499 (Alaska 1988); Ross Laboratories v. Thies, 725 P.2d 1076 (Alaska 1986). The Alaska court thus allows claims for implied contractual indemnity where the indemnitee (a) was not liable except vicariously for the tort of the indemnitor, or (b) was not liable except as a seller of a product supplied by the indemnitor and the indemnitee was not independently culpable. The indemnitor must also have secured the release of the indemnitee. AVCP Regional Housing Authority v. R.A. Vranckaert Co., 47 P.3d 650 (Alaska 2002).

For example, a retailer of a mobile home who was not negligent could obtain indemnity from the manufacturer of the home. As one court stated, "The general rule of implied indemnity in Alaska is that an innocent supplier of a defective product who is liable on a theory of strict liability is entitled to indemnity from the manufacturer of the defective product." Palmer G. Lewis Co. v. ARCO Chemical Co., 904 P.2d 1221, 1224 (Alaska 1995).

Contribution allows a party who is partially at fault, and has paid a judgment or settlement, to recover part of that payment from another party who was at fault, but has not paid or settled. In Alaska, there is a common law implied contribution action by a tortfeasor against another, non-settling tortfeasor. McLaughlin v. Lougee, 137 P.2d 267 (Alaska 2006). This cause of action appears to apply to post-1989 torts, which is the date that Alaska's prior contribution statute was repealed. It is likely Alaska will follow the Restatement (Third) of Torts: Apportionment of Liability, § 23. Id. at 279 and n.64. Thus, "[w]hen two or more persons are or may be liable for the same harm and one of them discharges the liability of another by settlement or discharge of judgment, the person discharging the liability is entitled to recover contribution from the other, unless the other previously had a valid settlement and release from the plaintiff." Id. (quoting Restatement (Third) of Torts: Apportionment of Liability, § 23(a)).

Although there is a cause of action for implied contribution, there is no implied indemnity among concurrently negligent tortfeasors. Vertecs Corp. v. Reichhold Chemicals, Inc., 671 P.2d 1273 (Alaska 1983).

C. Contribution

Alaska has no contribution statute. As discussed above, the Alaska court has recognized an action for implied contribution.

D. Third-Party Beneficiary

Alaska recognizes the right of a third-party right to enforce a contract upon a showing that the parties to the contract intended that at least one purpose of the contract was to benefit the third party. Smallwood v. Central Peninsula General Hosp., 151 P.3d 319, 324 (Alaska 2006). Thus, a beneficiary of a promise is an intended beneficiary and can enforce the promise if recognition of a right to performance in the beneficiary will effectuate the intention of the parties and the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance. Restatement (2d) Contracts § 302.

The third-party beneficiary doctrine has been applied to construction contracts. Thus, in one case the court held that the insurance provisions of a contract were not enforceable by an injured employee, for whose benefit the insurance was to be purchased. Howell v. Ketchikan Pulp Co., 943 P.2d 1205 (Alaska 1997) (pipe-fitter was not third-party beneficiary of contractor's contract with premises owner to repair boilers which provided liability coverage for injuries sustained by contractor's employees).