In JohnsonKreis Construction Company, Inc. v. Howard Painting, Inc., 2025 WL 877784 (Ala. Mar. 21, 2025), the Supreme Court of Alabama reversed a trial court’s grant of summary judgment that invalidated a proportional indemnity provision in a construction subcontract. The Court held that indemnification clauses allocating liability based on proportional fault—even in wrongful death cases involving punitive damages—are legally enforceable under Alabama law when clearly stated in a contractual agreement between private parties.

The dispute arose from a workplace accident at a hotel construction site in Birmingham, Alabama. Domingo Rosales-Herrera, an employee of a subcontractor supplying labor to Howard Painting, Inc. (“Howard”), was fatally injured when he fell out of a window while working. The equipment he was using was owned by the general contractor, JohnsonKreis Construction Company, Inc. (“JohnsonKreis”). The wrongful death suit named both JohnsonKreis and Howard as defendants.

The subcontract between Howard and JohnsonKreis required Howard to indemnify JohnsonKreis “to the proportional extent” of its fault in connection with injuries or death arising from its work. After Howard rejected the indemnity tender, JohnsonKreis settled the wrongful death suit without the participation of Howard. JohnsonKreis then sought contribution and indemnification in a separate declaratory action against Howard. JohnsonKreis alleged Howard breached the subcontract agreement by failing to comply with stated safety protocols and insurance requirements.

The trial court granted summary judgment in favor of Howard on the basis Alabama law does not permit apportionment of damages in wrongful death cases. The Alabama Supreme Court reversed the trial court’s ruling, emphasizing that while Alabama’s wrongful death statute does not allow for jury-apportioned fault among joint tortfeasors, parties may nevertheless enter into enforceable agreements to apportion liability by contract. The Alabama Supreme Court distinguished between statutory tort remedies and private contractual obligations, reaffirming that indemnity clauses—even those allocating responsibility for punitive damages—are enforceable if expressed in clear and unequivocal language. The Alabama Supreme Court held the subcontract provision at issue met this standard.

This case is a reminder that parties can contract for contribution, even in Alabama where it would otherwise not be allowed. Construction contracts should include express language limiting indemnity or clarifying one’s scope of responsibility. Express and unambiguous language in an indemnity provision is key to managing risk exposure in construction projects.