When a construction contract contains language obligating one party to “defend, indemnify, and hold harmless” another party, many assume that these first two terms operate as a package deal. The words “defend” and “indemnify” appear sideby-side in the contract, but in practice the two duties are entirely different. Under Florida law, the duty to defend and the duty to indemnify are governed by different triggering situations, and subject to different legal constraints.
The duty to defend may be triggered when a complaint alleges or a contract presents facts that could bring a party within an already promised defense obligation, even before any final liability is determined. However, the duty to indemnify is only triggered after liability is determined and the question is raised whether the indemnitor is ultimately liable to satisfy the loss.
In the context of Florida law, the statutory limitation of Fla. Stat. § 725.06, restricts enforcement of indemnity provisions that require a subcontractor to indemnify for a general contractor’s (or owner’s) active negligence unless certain conditions are met. Fla. Stat. § 725.06 applies only when indemnity for an indemnitee’s own negligence is sought and does not automatically bar defense obligations because it provides context for how Florida courts analyze combined defense and indemnity clauses. Florida courts have interpreted Fla. Stat. § 725.06 in several cases.
The Barton-Malow Decision
In Barton-Malow Co. v. Grunau Co., 835 So. 2d 1164, 1165 (Fla. 2d DCA 2002), the Florida Second District Court of Appeal held that “[t]he duty to defend is not severable from the remainder of the indemnity provision in Barton-Malow’s subcontractor agreement.” The court’s holding demonstrates that when a single clause contains both a duty to defend and a duty to indemnify, the obligations are joint and inseverable, such that the defense obligation cannot be enforced separately.
The decision tied the duty to defend to an invalidated indemnity provision, exposing the tension between contract language and statutory restriction. Florida courts interpreting these combined duties in this manner emphasize formal compliance with statutory requirements over practical considerations, which may leave contractors financially exposed even before liability is determined. The court’s reasoning underscores a critical lesson: In Florida construction law, even clear defense obligations cannot be assumed; what looks like protection on paper may be at risk for being weakened once statutory limits are applied.
The Eckerd Youth Decision
If Barton-Malow emphasized statutory form over function, Eckerd Youth Alts. v. Devereux Found., 366 So. 3d 1154, 1158 (Fla. 2d DCA 2023) welcomed the reality of construction practice, insisting that defense obligations cannot be sidestepped simply because indemnity is disputed. Here, the Second District Court of Appeal clarified that the duties to defend and to indemnify are separate and are allowed to be enforced independently, even if indemnity for the indemnitee’s own negligence is barred by Fla. Stat. § 725.06. In Eckerd Youth Alts., the court reversed summary judgment because the duties to defend and to indemnify are discrete obligations: “Here, Eckerd undisputedly and repeatedly tendered the defense of the entire lawsuit against it to Devereux. Devereux’s responses largely ignored the demands to defend, while ambiguously asserting it would ‘comply with its contractual obligations’ to indemnify. Then it wrongly claimed it had no obligation to assume Eckerd’s defense so long as Eckerd unqualifiedly demanded indemnity.”
The Eckerd Youth Alts. case represents to the legal realm that a party’s duty to defend has the ability to be implemented on its own, without waiting for resolution of indemnity obligations. Fla. Stat. § 725.06 limits only indemnity, not defense. Unlike Barton-Malow, where the duty to defend was inseverable from the indemnity obligation, Eckerd Youth Alts. confirms that defense and indemnity duties may be disconnected in a single clause, allowing the duty to defend to be fulfilled without delay or obstruction.
The Gray Zone
The split between Barton-Malow and Eckerd Youth Alts. exposes a foggy gray zone where statutory limits under Fla. Stat. § 725.06 can restrict indemnity clauses but do not automatically affect the duty to defend. Contractors must have the knowledge on exactly when each duty is triggered or the risk will lead to unfortunate events.
Florida courts will most likely interpret the duty to indemnify differently depending on statutory limits under Fla. Stat. § 725.06, while the duty to defend may remain enforceable, if separate. Once again, the word “practical” takes effect because the result of the interpretation is a practical challenge: Parties must anticipate potential exposure and carefully draft contracts for more clarification on when each duty is triggered.
The duty to defend and the duty to indemnify are known by those in the industry to constantly clash with Fla. Stat. § 725.06 when the duty to indemnify attempts to shift liability for the contractor’s own active negligence, creating vast legal uncertainty. Florida courts are often left to untangle both broad duties, making decisions on which obligations survive and which are curtailed by statute. This tension demands that contractors and subcontractors confront risk up front rather than deciding by assumption that cover is automatically applied.
In practice, this gray zone creates pivotal issues around litigation costs, exposure to unexpected liability, and more disputes over who is actually responsible for defending a claim in construction. By drafting contracts that clearly separate the duty to defend from indemnity obligations and by explicitly accounting for Fla. Stat. § 725.06, parties can ensure that defense obligations are enforceable even when indemnity is limited, reducing both risk and uncertainty. Much of the confusion surrounding the duty to defend and the duty to indemnify does not stem from ambiguous law, but from contracts that, when drafted, fail to account for how courts are required to apply statutory limits to them.
There are common drafting traps that can be avoided, such as assuming that the duty to indemnify automatically includes the duty to defend. Florida courts continuously show that this assumption is unreliable, particularly when statutory restrictions under Fla. Stat. § 725.06 come into play. When the duty to defend and the duty to indemnify are commingled together without clarity, contracting parties take chances on losing the very protection they believed the contract provided.
Another frequent drafting trap is depending on boilerplate language without tailoring that language to the realities of construction litigation. Clauses that fail to be specific in timing, scope, or independence of the duty to defend open the gates to direct litigation that is avoidable if the contractor is precise in drafting their contract.
The heart of the matter is that clear construction contracts and awareness of statutory boundaries determine who bears the risk, and when. The lessons from Barton-Malow and Eckerd Youth Alts. are clear: The duty to defend and the duty to indemnify cannot be treated as interchangeable, and reliance on boilerplate language is insufficient. Contract provisions should be deliberate, drafted with statutory restrictions in the mind of the contractor, and coordinated closely between legal and project teams.
About the Authors:
Benjamin Dowers, Gunther Legal, PLLC, contributed research to this article.
Hailey R. Fraidin was a summer associate, fall law clerk for Benjamin Dowers at Gunther Legal, PLLC. She attends Nova Southeastern University Shepard Broad College of Law. fraidhail@gmail.com