In a decision with major implications for contractual indemnity provisions, the Supreme Court of Ohio recently ruled that an indemnity provision in a contract essentially abrogates any common law indemnity principles that might exist under Ohio law.
In Wildcat Drilling v. Discovery Oil and Gas, 2023-Ohio-3398
, the Court found the longstanding common law indemnity principle requiring notice of a potential claim is not effective where parties to a contract agreed to an express indemnity provision that lacks a notice provision. According to the Court, the parties’ adoption of an express indemnification provision evidences a clear intent by the parties to deviate from common law rights as to indemnity, even if the contract does not
contain language that expressly abrogates common law.
The implications of the decision could be significant for companies with contractual indemnification provisions in their current form contracts. If the provision does not contain notice requirements, for instance, a party can no longer rely on Ohio common law to impose upon the opposite party an obligation to provide notice. Accordingly, companies seeking to enforce indemnity provisions should be sure to include notice requirements in their indemnity provisions going forward and amend current indemnity contracts to include such terms.