The court was reluctant to find that the indemnity provision applied because it was incorporated into the subcontract by reference rather than being directly included, casting doubt on whether the subcontractor understood it was assuming that risk. The indemnity would only apply if the injury resulted solely from the subcontractor's negligence. For the indemnity to be enforceable, it should have explicitly stated that the subcontractor agreed to indemnify the general contractor for its own negligence and that it was receiving consideration for accepting that risk.

1. CONSTRUCTION CONTRACT ADMINISTRATION
CASE STUDY
GOLDMAN V. ECCO-PHOENIX ELECTRIC CORP.
396 P.2D 371
(CAL. S.C. 1964)
By: Mahmoud M.I. Sobeh

2.  THERE IS A CONTRACT BETWEEN
THE OWNER & GOLDMAN AS A
PRIME CONTRACTOR .
operating
under the
name
 Goldman agreed to indemnify the
Owner for damage caused as a
result of the construction , as one
of the terms of the contract.

3.  THERE IS A SUBCONTRACT BETWEEN
GOLDMAN(CLOVIS) & SUB-CONTRACTOR
(ECCO-PHOENIX ELECTRIC CORP).
Ecco-Phoenix
Electric Corp.
 The subcontract incorporated by
reference the terms of the prime
contract into the subcontract. (term
number).
 Clovis argued that the Ecco-Phoenix
Electric Corp therefore assumed this
indemnity obligation.

4. An indemnification agreement
calling for financial protection
against one’s own negligence
cannot rest upon language so
loose and obscure as that of the
instant contract
The provision would
only apply if the injury
resulted solely from
Ecco’s negligence.
THE COURT HELD:

5. QUESTIONS
2
How could the
indemnity have
been drafted so as
to be enforceable
??
1
Why was the court
reluctant to find that
the indemnity
applied to these facts
??

6. ANALYSIS It was included in the
subcontract by reference
only, rather than directly,
which cast some doubt on
whether the subcontractor
knew it was taking on that
risk.
1
Why was the court
reluctant to find
that the indemnity
applied to these
facts ??

7. ANALYSIS If the provision explicitly stated
that the subcontractor agreed to
indemnify the general
contractor for its own
negligence, and was receiving
consideration for accepting that
risk, it would have a greater
likelihood of being upheld.
2
How could the
indemnity have been
drafted so as to be
enforceable ??

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