Maryland 2022 Regular Session

Maryland House Bill HB79 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1
2	2
3	3	EXPLANATION: CAPITALS INDICATE MAT TER ADDED TO EXISTIN G LAW.
4	4	[Brackets] indicate matter deleted from existing law.
5	5	hb0079
6	6
7	7	HOUSE BILL 79
8	8	D3 2lr0772
9	9	HB 213/21 – JUD (PRE–FILED) CF 2lr0771
10	10	By: Delegates Cardin and Atterbeary
11	11	Requested: October 15, 2021
12	12	Introduced and read first time: January 12, 2022
13	13	Assigned to: Judiciary
14	14
15	15	A BILL ENTITLED
16	16
17	17	AN ACT concerning 1
18	18
19	19	Courts – Prohibited Indemnity and Defense Liability Agreements 2
20	20
21	21	FOR the purpose of prohibiting a provision in a contract with a design professional for 3
22	22	professional services that requires the design professional to indemnify or hold 4
23	23	harmless certain parties unless the design professional is at fault for causing the 5
24	24	loss, damage, or expense indemnified; prohibiting a provision in a contract with a 6
25	25	design professional for professional services that requires the design professional to 7
26	26	defend certain parties against liability or certain claims; and generally relating to 8
27	27	indemnity and defense liability agreements. 9
28	28
29	29	BY repealing and reenacting, with amendments, 10
30	30	Article – Courts and Judicial Proceedings 11
31	31	Section 5–401(a) 12
32	32	Annotated Code of Maryland 13
33	33	(2020 Replacement Volume and 2021 Supplement) 14
34	34
35	35	SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, 15
36	36	That the Laws of Maryland read as follows: 16
37	37
38	38	Article – Courts and Judicial Proceedings 17
39	39
40	40	5–401. 18
41	41
42	42	(a) (1) (I) IN THIS SUBSECTION TH E FOLLOWING WORDS HA VE THE 19
43	43	MEANINGS INDICATED . 20
44	44
45	45	(II) “DEFEND” MEANS TO PAY FOR DEF ENSE COSTS OR TO 21
46	46	FURNISH COUNSEL AT T HE EXPENSE OF THE PR OMISOR FOR THE PURPO SE OF 22
47	47	DEFENDING A PROMISEE OR THE PROMISEE ’S INDEPENDENT CONTRA CTORS, 23 2 HOUSE BILL 79
48	48
49	49
50	50	AGENTS, EMPLOYEES, OR INDEMNITEES AGAIN ST CLAIMS ALLEGED OR BROUGHT 1
51	51	AGAINST THE PROMISEE OR THE PROMISEE ’S INDEPENDE NT CONTRACTORS , 2
52	52	AGENTS, EMPLOYEES, OR INDEMNITEES BY A THIRD PARTY IN ANY C OURT OR OTHER 3
53	53	TRIBUNAL, INCLUDING FORMS OF A LTERNATIVE DISPUTE R ESOLUTION REQUIRED 4
54	54	BY LAW OR CONTRACT , BEFORE THE COURT OR TRIBUNAL HAS REACHED A FINAL 5
55	55	DETERMINATION OF FAU LT. 6
56	56
57	57	(III) “DEFENSE COSTS ” MEANS REASONABLE FEE S OF 7
58	58	ATTORNEYS AND EXPERT WITNESSES, COURT COSTS , AND RELATED EXPENSES 8
59	59	ACTUALLY INCURRED BY A PARTY IN THE DEFEN SE OF A CLAIM OR AN ALLEGATION 9
60	60	OF LIABILITY IN CONN ECTION WITH LITIGATI ON, ARBITRATION, OR ALTERNATIVE 10
61	61	DISPUTE RESOLUTION P ROCEEDINGS . 11
62	62
63	63	(IV) “DERIVATIVE PARTIES ” MEANS A PARTY ’S 12
64	64	SUBCONTRACTORS , AGENTS, EMPLOYEES, OR OTHER PERSONS FOR WHICH THE 13
65	65	PARTY MAY BE LIABLE OR RESPONSIBLE AS A RESULT OF ANY STATUT ORY, TORT, OR 14
66	66	CONTRACTUAL DUTY . 15
67	67
68	68	(V) “DESIGN PROFESSIONAL ” MEANS: 16
69	69
70	70	1. A LICENSED ARCHITECT , AS DEFINED IN § 3–101 OF 17
71	71	THE BUSINESS OCCUPATIONS AND PROFESSIONS ARTICLE; 18
72	72
73	73	2. A CERTIFIED INTERIOR D ESIGNER, AS DEFINED IN § 19
74	74	8–101 OF THE BUSINESS OCCUPATIONS AND PROFESSIONS ARTICLE; 20
75	75
76	76	3. A LICENSED LANDSCAPE A RCHITECT, AS DEFINED IN 21
77	77	§ 9–101 OF THE BUSINESS OCCUPATIONS AND PROFESSIONS ARTICLE; 22
78	78
79	79	4. A PROFESSIONAL ENGINEE R, AS DEFINED IN § 14–101 23
80	80	OF THE BUSINESS OCCUPATIONS AND PROFESSIONS ARTICLE; OR 24
81	81
82	82	5. A PROFESSIONAL LAND SU RVEYOR, AS DEFINED IN § 25
83	83	15–101 OF THE BUSINESS OCCUPATIONS AND PROFESSIONS ARTICLE. 26
84	84
85	85	(VI) “FAULT” MEANS: 27
86	86
87	87	1. A BREACH OF CONTRACT ; 28
88	88
89	89	2. A NEGLIGENT, RECKLESS, OR INTENTIONAL ACT O R 29
90	90	OMISSION CONSTITUTIN G A TORT; OR 30
91	91
92	92	3. A VIOLATION OF APPLICA BLE STATUTES OR 31 HOUSE BILL 79 3
93	93
94	94
95	95	REGULATIONS . 1
96	96
97	97	(VII) “PROFESSIONAL SERVICES ” MEANS SERVICES OR WO RK 2
98	98	THAT CONSTITUTES THE PRACTICE OF A PROFES SION REGULATED BY , OR FOR 3
99	99	WHICH LICENSURE IS R EQUIRED UNDER , TITLE 3, TITLE 8, TITLE 9, TITLE 14, OR 4
100	100	TITLE 15 OF THE BUSINESS OCCUPATIONS AND PROFESSIONS ARTICLE. 5
101	101
102	102	(2) A PROVISION, covenant, promise, agreement, or understanding in, or 6
103	103	in connection with or collateral to, a contract or agreement relating to architectural, 7
104	104	engineering, inspecting, or surveying services, or the construction, alteration, repair, or 8
105	105	maintenance of a building, structure, HIGHWAY, ROAD, appurtenance or appliance, 9
106	106	including moving, demolition, and excavating connected with those services or that work, 10
107	107	purporting to indemnify the promisee against liability for damages arising out of bodily 11
108	108	injury to any person or damage to property caused by or resulting from the sole negligence 12
109	109	of the promisee or indemnitee, or the agents or employees of the promisee or indemnitee, is 13
110	110	against public policy and is void and unenforceable. 14
111	111
112	112	[(2)] (3) A PROVISION, A covenant, a promise, an agreement, or an 15
113	113	understanding in, or in connection with or collateral to, a contract or an agreement relating 16
114	114	to architectural, engineering, inspecting, or surveying services, or the construction, 17
115	115	alteration, repair, or maintenance of a building, a structure, A HIGHWAY, A ROAD, an 18
116	116	appurtenance, or an appliance, including moving, demolition, and excavating connected 19
117	117	with those services or that work, purporting to require the promisor or indemnitor to defend 20
118	118	or pay the costs of defending the promisee or indemnitee against liability for damages 21
119	119	arising out of bodily injury to any person or damage to property caused by or resulting from 22
120	120	the sole negligence of the promisee or indemnitee, or the agents or employees of the 23
121	121	promisee or indemnitee, is against public policy and is void and unenforceable. 24
122	122
123	123	(4) A PROVISION IN, OR IN CONNECTION WIT H A CONTRACT OR AN 25
124	124	AGREEMENT WITH A DES IGN PROFESSIONAL FOR PROFESSIONAL SERVICE S 26
125	125	PURPORTING TO REQUIR E THE DESIGN PROFESS IONAL TO INDEMNIFY O R HOLD 27
126	126	HARMLESS THE PROMISE E, THE PROMISEE ’S INDEPENDENT CONTRA CTORS, 28
127	127	AGENTS, EMPLOYEES, OR INDEMNITEES , OR ANY OTHER PERSON AGAINST LOSS, 29
128	128	DAMAGES, OR EXPENSES IS VOID AND UNENFORCEABLE UN LESS THE FAULT OF TH E 30
129	129	DESIGN PROFESSIONAL OR ITS DERIVATIVE PA RTIES IS THE PROXIMATE CAUSE O F 31
130	130	THE LOSS, DAMAGE, OR EXPENSE INDEMNIFI ED. 32
131	131
132	132	(5) A PROVISION IN, OR IN CONNECTION WIT H A CONTRACT OR AN 33
133	133	AGREEMENT WITH A DES IGN PROFESSIONAL FOR PROFESSIONAL SERVICE S 34
134	134	PURPORTING TO REQUIR E THE DESIGN PROFESS IONAL TO DEFEND A PR OMISEE, 35
135	135	THE PROMISEE ’S INDEPENDENT CONTRA CTORS, AGENTS, EMPLOYEES, OR 36
136	136	INDEMNITIEES, OR ANY OTHER PERSON AGAINST LIABILITY OR CLAIMS FOR 37
137	137	DAMAGES OR EXPENSES , INCLUDING ATTORNEY ’S FEES, ALLEGED TO BE CAUSED , IN 38
138	138	WHOLE OR IN PART , BY THE PROFESSIONAL NEGLIGENCE OF T HE DESIGN 39
139	139	PROFESSIONAL OR ITS DERIVATIVE PARTIES , WHETHER THE CLAIM IS ALLEGED OR 40 4 HOUSE BILL 79
140	140
141	141
142	142	BROUGHT IN TORT OR C ONTRACT, IS AGAINST PUBLIC PO LICY AND IS VOID AND 1
143	143	UNENFORCEABLE . 2
144	144
145	145	(6) THIS SUBSECTION MAY N OT BE INTERPRETED TO PROHIBIT AN 3
146	146	OTHERWISE ENFORCEABL E INDEMNITY OR HOLD HARMLES S PROVISION IN ANY 4
147	147	CONTRACT OR AGREEMEN T FROM INCLUDING REC OVERY OF REASONABLE 5
148	148	ATTORNEY’S FEES AND DEFENSE C OSTS ACTUALLY INCURR ED BY THE PROMISEE T O 6
149	149	DEFEND AGAINST THIRD –PARTY CLAIMS FOR DAM AGES, LOSSES, OR EXPENSES , 7
150	150	ALLEGED IN ANY COU RT, TRIBUNAL, OR ALTERNATIVE DISPU TE RESOLUTION 8
151	151	PROCEDURE REQUIRED O F THE PROMISEE BY LA W OR BY CONTRACT , IN CASES 9
152	152	WHERE THE FAULT OF T HE PROMISOR OR ITS D ERIVATIVE PARTIES IS DETERMINED 10
153	153	TO BE THE PROXIMATE CAUSE OF THE DEFENSE COSTS TO BE INDEMNIF IED. 11
154	154
155	155	[(3)] (7) This subsection does not affect the validity of any insurance 12
156	156	contract, workers’ compensation, any general indemnity agreement required by a surety as 13
157	157	a condition of execution of a bond for a construction or other contract, or any other 14
158	158	agreement issued by an insurer. 15
159	159
160	160	SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect 16
161	161	October 1, 2022. 17
162	162